Clarence Thomas helps the Supreme Court soil itself by Marjorie Arons-Barron

The entry below is being cross posted from Marjorie Arons-Barron’s own blog.

I remember when the U. S. Supreme Court was held in high esteem.Today less than a third of Americans polled view SCOTUS even somewhat favorably. Justice Clarence Thomas is a poster boy for why that is so.

With a blind eye to propriety, Thomas has accepted millions of dollars worth of luxury vacations from Harlan Crow, a multi-billionaire political donor who has been called an architect of right-wing judicial activism. Besides lavish vacations to New Zealand and Indonesia, travel on private planes and yachts, according to a Pro Publica investigation, that same mogul paid tens of thousands for private school tuition for Thomas’ grandnephew. Crow even purchased Thomas’ mother’s home, where she continued to live. Thomas’ wife, far-right activist and election-denying and January 6th plotter Ginni, was paid thousands of dollars in consulting fees by a Federalist Society executive, under the table. (Please also check out the excellent Frontline documentary on Thomas.)

It’s a far cry from 1969 when Johnson-appointed Associate Justice Abe Fortas, considered for the Chief Justice position, resigned because he accepted $20,000 ($175,000 in today’s dollars) from financier Louis Wolfson, who was being investigated for insider trading. Fortas denied doing wrong, but he responded to bipartisan pressure to step down, even though Republican Richard Nixon would appoint his successor. In a letter to Chief Justice Warren, Fortas said he did so because the court’s welfare and maximum effectiveness “are factors paramount to all others,” and he was resigning to spare the court “the harassment of debate concerning one of its members.” Shall will we expect pigs to fly before Clarence Thomas makes such a move?

At the time of the Fortas incident, Congress mulled financial disclosure legislation for federal judges. That didn’t happen until 54 years later. This past March, the Judicial Conference quietly adopted some disclosure requirements. But there’s a huge loophole for gifts of personal hospitality.

Thomas did disclose some relevant information more than 15 years ago but quickly retreated from such transparency ever since. Surely he should at least be recusing himself from deciding cases in which he or his wife were actively involved or had a vested interest. Thomas’ behavior manifests a willful blindness to the difference between right and wrong.

The late Justice Antonin Scalia accepted some pretty questionable vacations and other perks. Justice Neil Gorsuch reportedly sold a home to someone whose firm had several cases “before or presented to the court” and never disclosed the transaction. Justice Stephen Breyer, close to the wealthy Pritzker family of Chicago Pritzker, traveled on their dime, usually in connection with the Pritzker Foundation, (where he sat on its jury board awarding architectural prizes). Ruth Bader Ginsburg also traveled numerous times with costs of transportation, food and lodging covered, including one time by a wealthy Israeli businessman. Both Breyer and Ginsburg disclosed their financial details on the appropriate form.

Obviously some stouter requirements are in order, at least consistent with the standards to which legislative and executive branch officials are held. The Senate Judiciary has held one hearing on the matter, but you will hear strong arguments that such a law would violate the separation of powers. Chief Justice John Roberts cited separation of powers and judicial independence when he declined an invitation by Senator Dick Durbin to testify. The return of Diane Feinstein means the Senate can now subpoena Thomas’s financial benefactor, but a final decision on testifying could ultimately come down to Thomas and his Supreme Court colleagues. The Chief Justice’s lethargy has contributed to this period being known as the Thomas Court.

One wonders how a legislatively crafted code of ethics would be enforced. Congress has the power to impeach a Supreme Court Justice, but it hasn’t even been attempted for more than two centuries. Why shouldn’t Congress use control of the purse strings to pressure the Court to beef up its ethics rules? To a large extent, Congress controls the Court’s jurisdiction, the salaries and pensions of the Justices, and other administrative functions like office space , law clerks and other support staff. Couldn’t it use those powers to require wider disclosure and better-defined recusals when there is appearance of a conflict of interest?

We don’t want SCOTUS to be isolated from the real world. But that doesn’t justify the other extreme, slatternly behavior that reeks of the appearance of bias, favoritism and lack of impartiality.

Absent action from the legislative branch, Roberts, sensitive to his own legacy if not to a larger purpose, should work behind the scenes to forge a consensus among judges to pressure Thomas to retire. He could do so at the end of this session, well before the 2024 election year.

Back in 2009, Roberts speciously asserted that the federal judiciary is not a political branch of government. That fiction was most recently exposed when Majority Leader Mitch McConnell refused a hearing on President Obama’s nomination of Merrick Garland to the Court but rammed through Trump’s pre-election nomination of Amy Coney Barrett. SCOTUS’ reputation has circled the drain since then, forever imperiling our democracy.