ProPublica’s revelations about Supreme Court Justice Clarence Thomas’s lavish vacations paid for by a GOP donor demonstrate the justice’s long-standing refusal to comply with the most basic principles and expectations of judicial ethics. The question now is whether Thomas’s brazen operating assumption that he is above reproach will be yet again proven accurate.
Clarence and Ginni Thomas have apparently enjoyed travel by private jet, yachting trips, gifts, and luxury vacations all paid for by Harlan Crow, a Texas billionaire who has donated millions of dollars to conservative causes, including a group founded by Ginni Thomas, from which she drew a six-figure salary. ProPublica’s research estimated that just one of these island-hopping yacht trips would cost nearly twice the justice’s annual salary. No worries for Thomas, however, as his friend took care of the tab.
The largesse reportedly heaped on the justice brings shame and dishonor to the Supreme Court. Thomas’s failure to disclose certain elements of these trips — for example, the private jet travel — may have violated federal law. Moreover, the sheer volume and cost of the lavish vacations bestowed on Thomas by a billionaire benefactor would, for any other judge in America, violate their code of conduct. Thomas, however, can act with continued impunity because the Supreme Court refuses to adopt a code of ethics for itself.
The essential elements of a code of conduct — indeed, the very reason for its existence — are to preserve the integrity, impartiality, and independence of the judiciary. Fundamental to such rules is the clearly articulated notion that public confidence is eroded by personal and professional conduct that creates even the appearance of impropriety. Accordingly, judges should expect to be held to a level of scrutiny and “accept restrictions that might be viewed as burdensome by the ordinary citizen,” a recognition deeply relevant in the context of the Supreme Court.
Both Thomas and Crow issued statements that belie self-awareness and ignore why the concept of “appearance of impropriety” is deeply embedded in conflict-of-interest legal principles. Crow crowed about his and his wife’s blessed life of friends and financial success, noting that his friendship with Clarence and Ginni Thomas extends back to 1996. He tried to exonerate himself from the taint of his influence by stating that neither he nor his wife have ever “asked about a pending or lower court case,” nor would his gatherings of friends lobby or seek to influence the jurist “on any case.”
Crow’s choice of words spoke volumes about what was omitted. True influence is exerted through a far more subtle dance than an outright exhortation to vote a certain way. Evangelical minister and the former head of a religious right action group Rob Schenck described how he recruited and coached wealthy volunteers to entertain Clarence Thomas and his conservative colleagues. The volunteers were coached on phrasing and conversational starting points that would help to influence a way of thinking, without ever mentioning a specific case. Schenck described creating “an ecosystem of support for conservative justices” to help them feel more comfortable in the expression of their views.
Crow’s social engagements seem to follow a similar playbook: Bring together titans of industry and the legal profession with a shared perspective and cushion Thomas in the cocoon of those relationships to stiffen his resolve to take extreme positions and ignore the public outcry.
But while Thomas may be inoculated — and certainly well-rested from the vacations — the Supreme Court suffers. Americans have lost confidence in the integrity of the institution. Yet the public’s faith in the legitimacy of the court’s decision-making is the only real power the court possesses. It is not just Thomas; revelations about other justices demonstrate that this is not a problem of one rogue judge.
This must change. As called for by the American Bar Association, numerous experts, and a majority of the public, Supreme Court justices should be held to a binding code of conduct, just like every other judge in this country. To facilitate the process, our organizations have drafted one for consideration.
Using the rules applicable to all other federal judges as a baseline, Lawyers Defending American Democracy and the Project On Government Oversight also supplemented those rules to address the unique circumstances applicable to the most powerful court in our justice system. Specifically, our proposed code includes: clear and more stringent guidelines for recusal; prohibitions against specific kinds of conduct that create an appearance of impartiality; more rigorous obligations for disclosure — including the finances of spouses; and standards for transparent decision-making.
Such added requirements are warranted for the only lifetime appointments to a position of extraordinary power and prestige that exist in our system of government.
At Crow’s palatial estate in the Adirondacks, a painting captures the way power and influence operate in America. The lifelike portrait of five leading figures of wealth and influence, including Crow, Thomas, and the architect of today’s ideological and political Supreme Court, Leonard Leo, sit casually attired, some sporting cigars and a drink, appearing comfortable in their magnificent surroundings and engaged in deep conversation.
That is how influence works. The justice is surrounded by kinship and munificence, suitable for those of enormous power. His friends do not have to shape his views. Rather they enable their free expression, untethered by the human impact of the justice’s decisions or the corrosive effect on democracy when privilege invades systems dependent upon the public’s belief that they are worthy of our trust.
Lauren Stiller Rikleen, executive director of Lawyers Defending American Democracy, is the editor of “Her Honor – Stories of Challenge and Triumph from Women Judges.” Sarah Turberville is director of The Constitution Project at the Project On Government Oversight.