A Reality Check on the Criticism of United States Supreme Court Justice Clarence Thomas
The focus needs to shift from attacks against Clarence Thomas to a broader efforts to implement proper and effective ethics rules at the United States Supreme Court
Many critics are calling for United States Supreme Court Justice Clarence Thomas’s removal amid revelations that he received massive gifts from powerful donors and heard cases before the Supreme Court involving his benefactors.1 In particular, he seems have benefitted financially from his personal friendship with businessman Harlan Crow. Many are calling for his resignation, demanding his impeachment, or hoping the conservative majority of the Court will be embarrassed enough by Justice Thomas’s action to shift course in a number of highly anticipated cases.
Is this a likely outcome?
To answer, I quote Professor Quincy Maddox, the esteemed chair of the African American Studies Department at the University of Austin at Texas, who has famously said: “ain’t nothin’ gonna’ happen.”2
Justice Thomas will leave the Court when god or nature decides. He will not voluntarily leave now at the height of his power to allow Joe Biden to appoint his successor. Whether that’s right is unfortunately irrelevant. It simply is reality.3
However, our tribalistic focus on Justice Thomas threatens to be counterproductive to efforts that seek to change the current lack of ethics rules binding United States Supreme Court members. It is clear the current rules need to be changed.
A number of conservative defenders have argued that the criticisms of Justice Thomas are overblown. For example, the allegation of not reporting a source of income for 17 years appears to be a typographical error where he wrote the old name of a company that paid him, “Ginger, Ltd. Partnership” instead of the reconstituted company “Ginger Holdings, LLC”.4 There may be some truth to these defenses. Nevertheless, the revelations reveal a deeper issue. And one that cautions shifting the focus away from Justice Thomas to the current insufficiency of our ethics rules.
United States Supreme Court Justices are some of the most powerful individuals in this country. They have the power to over-ride laws and policies of democratically elected lawmakers and are insulated from the forces of politics with lifetime tenure. Their constitutional rulings are extremely unlikely to be overturned by amendment. We rely upon them to be impartial arbiters of law and justice. And we expect them to be fair. Not bought and paid for by wealthy private benefactors.
What is most damaging by the revelations thus far is the appearance of impropriety on the part of Justice Thomas. In the eyes of the American public, Justice Thomas looks like someone who is bought and paid for. Even if he isn’t, that’s what is conveyed. Moreover, he appears to have financially benefitted from being a Justice.
Justices commit themselves to public service. While no one should be robbed of a livelihood or economic opportunity to serve the public, the American public does not want its public officials using their government offices to personally enrich themselves. Even if one assumes, for the sake of argument, that Justice Thomas has never switched a vote because of personal benefit, has not technically violated any ethics rules, and simply has received these gifts through a legitimate friendship, he has financially benefitted solely through being a Supreme Court Justice.
This leads to another realization. Let us assume for the sake of argument that Justice Thomas is a straight up honorable dude who would never sacrifice his integrity or fidelity to his constitutional principles. He would always rule fairly and never put that aside just so he could be the beneficiary of a sugar daddy looking to control the Court.
It is now readily apparent that a Justice lacking rigid moral boundaries COULD be purchased by a powerful billionaire or centimillionaire. Our lax reporting and gift rules enable this possibility. It becomes perfectly conceivable that equal justice under the law at the Supreme Court could become something merely illusory. Instead, outcomes could be purchased by wealthy interests looking to protect their own interests.
This must be changed.
What should the rules be for Supreme Court Justices? A few possibilities to consider:
Strict annual gift limitations to the Justices from any individual who is not an immediate family member.
A prohibition on accepting cash for speeches.
A prohibition or limitation on accepting free private jet flights from individuals who are not immediate family members.
Stricter reporting requirements to ensure individuals and entities are limited in getting around the gift limits.
Annual income and gift reporting for Justices that is easier for the public to find.
Stricter and clearer definitions of conflicts of interest.
Mandatory recusal on cases for Justices if they have a conflict of interest. Changing the current rules so that when there is a recusal, the Court can have other Article III judges sit on the Supreme Court by special designation.
These are only some possibilities to consider. These proposed rules are not designed to punish Supreme Court Justices. They are designed to prevent actual corruption. These rules also protect the Court’s appearance of being corrupt in the minds of the public. The appearance of impropriety can be just as damaging as actual impropriety itself.
However, any United States Supreme Court reform, or even federal court reform, must be bipartisan and multi-ideological. There should be broad consensus, regardless of one’s political party or ideological bent that protecting the integrity of the Court and protecting the confidence of the American public are vitally important. Reforms cannot be enacted with the idea to shift outcomes on the Court or be proposed in order to target individual Justices who hold legal and political philosophies we dislike.
Justice Thomas is a lightning rod. Most conservatives greatly like and respect the man. Some of us (like me) appreciate his jurisprudence as much as we enjoy an unscheduled colonoscopy. Ideally, seeing him leave the Supreme Court and getting replaced with a Biden appointment would please us greatly. Conservatives, however, are not interested in seeing him leave the Court. They have no interest in making the Court less conservative in its judicial outcomes.
While there may be as yet revelations that could shift public opinion, thus far, no smoking gun has been uncovered that will persuade those who support him that he needs to go. If attempting to enact common sense reforms becomes seen as an anti-Justice Thomas crusade, it will thwart efforts to implement reforms.
The recent revelations of Justice Thomas’s benefactors are troubling. They are damaging to the Court. But the far deeper problem here is with the lax gift rules imposed upon the Supreme Court.
The focus needs to be on ethics reform of the U.S. Supreme Court. Not whether we like or dislike any particular Justice or their philosophy.
https://www.washingtonpost.com/investigations/2023/05/04/leonard-leo-clarence-ginni-thomas-conway/
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https://thehill.com/regulation/court-battles/3953866-clarence-thomas-claimed-income-from-defunct-real-estate-firm-report/