We’re just starting to digest the implications of Justice Clarence Thomas’ latest ethics scandal — but as with so many past scandals, it is quickly becoming clear that the original allegations may not be what finally initiates some accountability. Indeed, last week the Senate Judiciary Committee officially requested Chief Justice of the United States John Roberts to testify about ethical standards on the country’s highest court. And a possible cover-up might have been the final straw.
It’s hard to understate the seriousness of the recent bombshell revelations about Thomas’ decades-long patronage relationship.
It’s hard to overstate the seriousness of the recent bombshell revelations about Thomas’ decades-long patronage relationship with billionaire Republican mega-donor Harlan Crow. That Thomas felt comfortable accepting the series of opulent gifts and vacations from the reclusive real estate mogul is an obvious indictment of our judicial ethics system. The fact that he appears to have concealed these benefits from the public after he was mildly criticized in the wake of a report in 2004 may be just as great a problem, underscoring the need for serious ethics reform at the country's highest court.
Thomas’ actions place him in potential legal jeopardy, and further undermine the Supreme Court’s legitimacy in the eyes of a public that has become increasingly skeptical of its ability to act as an apolitical arbiter of the law. Like former President Richard Nixon before him, Thomas’ apparent deception has created a crisis of confidence in our institutions of government.
Let’s start with the facts: According to two blockbuster stories by ProPublica, Clarence Thomas and his wife, Ginni, have had a decades-long relationship with real estate mogul and noted conservative activist Harlan Crow. During the period of their apparent friendship, which notably began after Thomas ascended to the Supreme Court, Crow treated the Thomases to vacations on his super yacht, flights around the world on his private jet and even invited Thomas to an all-male retreat called Bohemian Grove.
Crow’s company also purchased three residential properties in Savannah, Georgia, co-owned by Thomas, his mother and the family of Thomas’ late brother, for $133,363. Crow made substantial improvements to the property and allowed Thomas’ mother to remain in her house rent free. Crow defended the deal by noting that he purchased the property to maintain Thomas’ childhood home for posterity and as a potential site for a museum dedicated to the justice, perhaps failing to realize that such a monument is also a gift of potentially immeasurable value. CNN reports Thomas thought he didn't need to report the deals but would be reviewing his financial disclosure forms.
Thomas said in a statement that he had received advice earlier in his career that these “sort” of trips were not reportable. The notion that members of the federal judiciary might advise Thomas to accept these gifts, let alone fail to disclose them, is truly hard to believe. If somehow true, it suggests a much wider problem in the judiciary. Any one of these gifts risks the public impression that Thomas was allowing an ultra-wealthy person to buy access and possibly influence. And the real estate transactions appear extraordinarily beneficial to Thomas and his family.
This is precisely why Congress passed legislation requiring that the financial dealings of public officials be publicly disclosed. By making sure that government officials operate transparently, these laws ensure that the people can have faith that their public servants are serving them. Transparency builds institutional legitimacy — and opacity destroys it.
That’s a lesson that the country learned from the Watergate scandal. The revelation that some Nixon campaign employees broke into the Democratic Party headquarters didn’t cause a generation of Americans to lose their faith in government. That disastrous loss of institutional legitimacy was the result of Nixon’s wild abuses of power in his quest to stop the public from finding out the truth behind the break-in.
Transparency builds institutional legitimacy — and opacity destroys it.
Time and again the cover-up is what ultimately causes the downfall.
As my organization, Citizens for Responsibility and Ethics in Washington (or CREW), explained in a recent complaint to Attorney General Merrick Garland and Chief Justice John Roberts, Thomas’ decision not to disclose these luxuries as gifts or in-kind travel-reimbursements, and concealing the real estate transactions without properly disclosing them on his financial disclosure reports, likely violated the Ethics in Government Act.
But his decades of deception will have a far deeper impact on our democracy. What else might he be hiding? And are other justices concealing similar relationships with wealthy and powerful activists? These questions will naturally lead the public to wonder whether any member of the Supreme Court is truly independent — and whether the court itself can render impartial justice at all. And if Americans begin to believe that the Supreme Court’s decisions are not based on an impartial interpretation of the law, they will eventually begin to question the legitimacy of the court’s power.
This is poison for the Supreme Court. It is an institution built on a foundation of public trust: It does not have the power of the purse or the authority to enforce the laws that it interprets. Credibility is its currency. And that foundation of credibility is already eroding. Even before this scandal, Americans’ confidence in the Supreme Court was already at the lowest level since Gallup began polling the question nearly 50 years ago. And many more Americans disapprove of the Supreme Court than at any time since polling began.
“As far as I’m concerned, I sat next to him on the bench for 28 years. I like him. He’s a friend of mine. I’ve never seen him do anything underhanded or say anything underhanded,” retired Justice Stephen Breyer said at a conference last week.
It’s a nice sentiment — but one totally divorced from our current reality. Breyer may well like Clarence Thomas, but that’s beside the point. Thomas has an ethical duty, and he failed to live up to it. As a result, he has caused greater harm to himself, his legacy and the Supreme Court as an institution than disclosing his conduct would have done. And in doing so he learned the same lesson that many before him have been forced to learn: Honesty may be painful or uncomfortable, but the alternative is worse. And once again, our democracy may end up paying dearly for that lesson.