Unequal Justice: Clarence Thomas isn't going anywhere

The problem with Justice Clarence Thomas isn’t just that he’s reactionary or morally bankrupt. It’s that he isn’t going anywhere any time soon.

Thomas is in his thirty-first year on the high court, placing him twelfth on the list of longest-serving Supreme Court justices in history. While he will turn seventy-five in June, he appears in reasonably good physical health, and has no intentions of stepping down.

In 1993, Thomas told two of his law clerks that he planned to serve on the court until 2034, and that until then he would do his utmost to make the lives of liberals “miserable.” If his plans hold, Thomas will eventually become the longest-tenured Justice of all time, surpassing William O. Douglas, who stayed on the panel for thirty-six years and 209 days.

Earlier this month, Thomas again made good on his pledge to own the libs—and further erode the stature of the Supreme Court in the process, when he issued a statement denying any wrongdoing in response to a bombshell ProPublica article. The investigation revealed a stunning array of secret gifts that Thomas and his wife Ginni Thomas, the crackpot uber-right election denier, have received from Texas billionaire and Republican mega-donor Harlan Crow over the past twenty years.

Crow is a founder of the conservative nonprofit Club for Growth. He also sits on the board of the American Enterprise Institute, an aggressive rightwing think tank with a long track record of publicizing and promoting amicus briefs in pending Supreme Court cases. The institute’s roster of affiliated scholars over the decades has included the likes of Newt Gingrich, Dinesh D’Souza, and Robert Bork. Crow also reportedly houses a signed copy of Mein Kampf and two paintings by the Führer himself in the art collection that he maintains at his Highland Park mansion in Dallas County, Texas.

On April 6, ProPublica reported that the Thomases took a 2019 trip to Indonesia on Crow’s Bombardier Global 5000 jet, followed by a nine-day island-hopping cruise aboard Crow’s superyacht. ProPublica reporters valued the junket at more than $500,000 dollars, nearly double Thomas’s annual salary of $285,000.

The Indonesia excursion was only one of many trips for which Crow has picked up the check on the Thomases’ behalf. Thomas and his wife regularly take summer vacations at Crow’s rustic resort in the Adirondack Mountains of New York, and have been hosted at Crow’s ranch in East Texas. Crow also paid for Thomas to attend a one-week retreat at the exclusive all-male Bohemian Grove in California. And to top off his beneficence, in 2011, Crow gave half a million dollars to a Tea Party group founded by Ginni Thomas, who received a $120,000 salary from the group.

On April 13,ProPublica updated its reporting to add that in 2014, Crow purchased the two-bedroom home in Savannah, GA, where Thomas’s mother lived, along with two nearby vacant lots, for $133,363. The home was jointly owned by Thomas, his mother, and the family of the Justice’s late brother. Expensive improvements were subsequently made to the property, where a source told ProPublica Thomas’s mother still resides.

Thomas’s rejoinder to the original ProPublica story (he has not as yet replied to the update), was released by the court’s public information office. It is a work of evasion and artifice, reading in full:

Harlan and Kathy Crow are among our dearest friends, and we have been friends for over twenty-five years. As friends do, we have joined them on a number of family trips during the more than quarter century we have known them. Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable. I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines. These guidelines are now being changed, as the committee of the Judicial Conference responsible for financial disclosure for the entire federal judiciary just this past month announced new guidance. And, it is, of course, my intent to follow this guidance in the future.

That last sentence refers to new guidelines adopted in March by the Judicial Conference of the United States, the administrative arm of the federal courts that modestly tightens the financial disclosures federal judges must make each year for themselves and their spouses under the 1978 Ethics in Government Act (EGA) to safeguard against conflicts of interest.

The new regulations require judges to disclose gifts in excess of $415 from people other than relatives, any complimentary transportation, and any free stays at commercial properties. There is a giant loophole, however, in both the new and old regulations that Thomas has exploited: Free lodging at the personal residences or properties owned by individuals (rather than corporations) is exempt under a “private hospitality exception,” and need not be reported.

The loophole is outrageous, but not as wide as Thomas apparently thinks. Even if he had no obligation to report his sojourns on Crow’s ranch and Adirondack summer playground, Thomas still had a duty to disclose other goodies such as the purchase of his family’s Savannah home, his trip to Bohemian Grove, his numerous rides on Crow’s private jet, and his Indonesian cruise.

“When a Justice’s lifestyle is being subsidized by the rich and famous, it absolutely corrodes public trust,” Virginia Canter, the chief ethics counsel at Citizens for Responsibility and Ethics in Washington (CREW), told ProPublica for its initial article. “Quite frankly, it makes my heart sink.”

Thomas’s official statement is also rife with hypocrisy. In a 2020 documentary film about his life, Created Equal: Clarence Thomas in His Own Words, Thomas can be seen on-screen, quipping, “I prefer seeing the regular parts of the United States. I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it. I come from regular stock, and I prefer that—I prefer being around that.” The documentary was bankrolled in part by—you guessed it—Harlan Crow.

Like Thomas, Crow has released a statement denying any improprieties in his relationship with the Justice.

The ProPublica revelations are by no means Thomas’s first brush with ethics issues. Scandals and controversy have long dogged Thomas, dating back to his raucous 1991 Senate confirmation hearing, when he was credibly accused of sexual harassment by Anita Hill and other female colleagues while he was the chair of the Equal Employment Opportunity Commission.

In 2011, amid an outcry from Common Cause and other watchdog groups, he was forced to amend thirteen years of disclosures for failing to report his wife Ginni’s income from the Heritage Foundation, Hillsdale College, and other employers. Thomas claimed at the time that he that he had misunderstood his reporting responsibilities, and simply checked the wrong boxes on his disclosure forms, an odd response from a Supreme Court justice, let alone a lawyer.

In 2021 and again in 2022, Thomas arguably crossed ethical lines once more when he failed to recuse himself in cases involving the January 6 insurrection and Donald Trump’s efforts to overturn the results of the 2020 election, despite Ginni’s prominent role as an organizer of the “Stop the Steal” campaign. Thomas’s participation in such cases may have violated the federal recusal statute.

As veteran legal commentator Adam Cohen noted in a recent op-ed in The New York Times, Democrats and Republicans in Congress joined forces fifty-four years ago to demand that Supreme Court Justice Abe Fortas resign as a result of alleged financial improprieties that pale in comparison to those involving Thomas.

Although Thomas is a clear-cut candidate for impeachment or at the very least an investigation by the Senate Judiciary committee, there is no chance today of a similar bipartisan move against Thomas. The Republican Party of 2023 loves Clarence Thomas, and as long as it does, he isn’t going anywhere.