April 21, 2023

Justice Thomas Proves Again What We All Know

Russ Feingold President

If it wasn’t abundantly clear before, it is appallingly obvious now. The Supreme Court needs a binding code of ethics to reign in certain justices’ fast and loose approach to ethics.

The Supreme Court is not only the most powerful court in the country, it is arguably the most powerful branch of government right now as its conservative supermajority flexes its muscle in sweeping and devastating decisions. The Court’s power and impact makes it all the more important that its members adhere to the highest ethical standards. Instead, multiple justices have shown a consistent indifference to ethics, including to the few federal ethics laws with which they are supposed to comply.

Most recently, ProPublica published extensive details about how Justice Thomas has gone on luxury vacations, traveled on private jets, and profited from real estate deals bankrolled by Harlan Crow. For those not familiar with him, Crow is a Texas billionaire and a leading donor to Republican candidates and causes. Justice Thomas’ financial ties to Crow go back years.

Separately, the Washington Post recently reported that Justice Thomas has, also for multiple years, reported receiving rental income from a firm that has not existed since 2006. Thomas’ reporting is part of mandatory financial disclosure for justices. And yet, even when he does report financial dealings, he has repeatedly failed to report it accurately.

Thomas is not the first justice to enjoy travel, hospitality, and vacations paid for by big-money political donors. Although the duration of his relationship with Crow and the price tag of Crow’s combined patronage is astounding. Perhaps the most shocking revelation in ProPublica’s reporting is that of a real estate deal between Justice Thomas and his family and Crow, wherein Crow bought the house in which Justice Thomas’ mother was and still is living. As ProPublica reports, “soon after the sale was completed, contractors began work on tens of thousands of dollars of improvements,” all while Thomas’ mother lives there and continues to benefit from the renovations.

Why are we just learning about this transaction now, nearly a decade after the fact? Because Justice Thomas never disclosed it despite federal law requiring officials – including Supreme Court justices – to disclose real estate deals over $1,000. The resulting impression is that of a justice who thinks himself above the law and who feels no obligation to be transparent with the American public he serves. In the wake of all this reporting, he has said he will amend his financial disclosure forms, thereby acknowledging that he should have disclosed it when it happened.

Separately, there was new reporting this week about Justice Alito and how oil companies are crafting their litigation strategies to avoid him recusing himself. Supreme Court justices are supposed to be bound by a federal recusal law that requires judges to remove themselves from litigation in certain circumstances. The problem? There is no enforcement mechanism. Whereas lower court judges can have their refusal to recuse appealed to a higher court, there is no higher court to appeal to when it comes to the decision to a Supreme Court justice. The last several years have seen justices, time and time again, partake in cases where they arguably should have recused themselves.

The Court has had every chance to prove that its members will voluntarily comply with existing ethics rules or will dutifully investigate ethics violations by its members or take the lead in crafting its own code of ethics. It has consistently failed to do any of these.  Congress must act.

ACS applauds the Senate Judiciary Committee’s responsiveness to the latest reporting by ProPublica and its upcoming public hearing about Justice Thomas’ ethics violations. We welcomed the Senate Judiciary’s Invitation to Chief Justice Roberts to testify before the Committee and hope he accepts it. Congress has a duty to check the Supreme Court and that must include rigorously investigating violations of federal law and flagrant ethics lapses. We also support calls for the Department of Justice to investigate Justice Thomas’s failure to report the real estate deal with Crow.

At the same time, we cannot lose sight of the unfortunate reality that the Supreme Court’s ethics problems go beyond the behavior of one justice. Even if Justice Thomas is held accountable, it will not address the Supreme Court’s broader legitimacy crisis, exacerbated by its lack of a binding code of ethics. The Court’s legitimacy crisis, exemplified by the public’s plummeting confidence in the institution, requires structural and non-structural reform. This includes the establishment of a binding code of ethics, complete with an enforcement mechanism and consequences for violations.

We need to restore the Court to one that is bound by the rule of law, ethics, precedent, and judicial restraint, rather than to partisan ideology.

Importance of the Courts, Supreme Court Reform