Photo-Illustration: Intelligencer; Photo: Olivier Douliery/AFP via Getty Images
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Clarence Thomas and the Ethical Disaster of the Supreme Court

Undisclosed gifts from billionaires won’t even embarrass the right.

Photo-Illustration: Intelligencer; Photo: Olivier Douliery/AFP via Getty Images

One of the oddest features of the American constitutional order is that it cedes the greatest level of power to the branch of government with the weakest ethical constraints. The judicial branch can, by majority vote, override any law passed by the other two branches, even those requiring supermajority support. Yet the justices of the Supreme Court, whose authority is total, do not even need to follow the ethical rules imposed on lower-ranking judges. The assumption, if there is any, is that, having ascended to the highest point in the legal-political hierarchy, the forces of corruption and influence that tug at everybody else within the system cease to operate.

The most glaring example of the Supreme Court’s ethical vacuum is Clarence Thomas. The right-wing justice has operated, in conjunction with his wife, in the center of a network of conservative activists whose project is indistinguishable from his legal work. The most recent of a string of revelations about Thomas’s disregard for ethical norms comes from ProPublica, which reports that he accepted hundreds of thousands of dollars worth of luxury trips from businessman, right-wing activist, and Republican megadonor Harlan Crow.

Thomas did not disclose any of these gifts, a failure that “appears to violate a law passed after Watergate that requires justices, judges, members of Congress, and federal officials to disclose most gifts,” two ethics-law experts tell ProPublica. But the important thing to understand is that there is no enforcement mechanism at all for these ethical norms. They are essentially a suggestion. Thomas did not bother responding to ProPublica’s questions, and there is no reason to believe he will face any consequences or change his behavior in any way.

Thomas has put himself forward as a man of simple tastes:

“I don’t have any problem with going to Europe, but I prefer the United States, and I prefer seeing the regular parts of the United States. I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it. I come from regular stock, and I prefer that — I prefer being around that.”

Thomas made these statements in a documentary financed in part by Crow, the very man who flies him around the world to exclusive resorts and other luxury venues. This statement also reveals that Thomas’s public statements that are meant as signals about his integrity and potential for corruption can’t be taken at face value.

Thomas’s deepest conflicts involve his wife, Ginni, a powerful conservative activist whose network on the right is too extensive to even be summarized. Justice Thomas once said publicly of Ginni, “We are equally yoked, and we love being with each other because we love the same things. We believe in the same things.” Ginni now says the two operate in different lanes, but when a justice’s spouse works in politics, it is not even possible to construct a firewall between their work. Any assumption of separability between the goals of the two Thomases relies, by necessity, on trust.

Just over a year ago, The New York Times Magazine reported that Justice Thomas was ignoring the federal judicial code of conduct’s prohibition on judges speaking at fund-raising events. (The federal judicial code of conduct does not officially apply to the Supreme Court, although Chief Justice John Roberts has said its members “do in fact consult it.”) Thomas, the Times found, “has at least twice headlined annual conferences at the Eagle Forum” and “headlined an event for the Council for National Policy in 2002,” and “in 2008 he attended one of its meetings and was photographed with a gavel behind a lectern bearing the group’s name.”

Thomas “declined to comment through a court spokesperson.”

Shortly after, Ginni’s role in pushing to overturn the results of the 2020 election began to slowly emerge. In May, the Washington Post reported that she wrote to two Republican lawmakers in Arizona urging them to hand the state’s electoral votes to Donald Trump. Mark Paoletta, a friend and unofficial spokesperson to both Thomases, sneered in response that the Post “hates Justice Thomas, particularly after the leaked draft Dobbs opinion overturning Roe, and they are attacking him through his wife Ginni,” who merely “signed her name to a pre-written form letter that was signed by thousands of citizens and sent to state legislators across the country.”

The Post subsequently discovered that Thomas actually contacted 29 Arizonan lawmakers, as well as at least two in Wisconsin. This report got another brush-off: “A spokeswoman for the Supreme Court did not respond to questions for Clarence Thomas.”

Messages between Thomas and John Eastman, a conservative lawyer who played a central role attempting to construct a legal rationale for the coup attempt, revealed more detail about both the extent of Ginni Thomas’s involvement, and the utter kookery of her beliefs, which included numerous distinct beliefs associated with QAnon. The Times also revealed that Eastman was apparently aware of internal Supreme Court debates over whether to intervene in the election aftermath. “So the odds are not based on the legal merits but an assessment of the justices’ spines, and I understand that there is a heated fight underway,” he wrote in December 2020.

It seems at least likely that Eastman got this window into internal Court deliberations through the Thomases. But neither of them has even needed to deny it, so who can say?

When the Supreme Court voted to allow the January 6 committee to examine Trump’s communications — which included messages between Ginni Thomas and Mark Meadows, Trump’s chief of staff — Clarence Thomas cast the sole dissenting vote rather than recuse himself.

The official Republican position is that it is fine and good for Thomas to issue rulings to protect his wife’s communications about a coup attempt. “Justice Thomas can make his decisions like he’s made them every other time,” explained House Minority Leader Kevin McCarthy.

One singularly unethical justice might be a containable problem. But Clarence Thomas is not seen by conservatives as an embarrassment they’re stuck with. To the contrary, they celebrate him as their moral beacon. At a tribute at the Heritage Foundation, Mitch McConnell called Thomas “a legal titan” and “the brightest possible north star.” Ron DeSantis described Thomas as the “greatest living justice.”

(DeSantis has apparently had some back-channel conservations with Thomas, according to emails obtained by American Oversight, which found that Ginni Thomas asked his office about getting in touch with the Florida governor, and noted, “My husband has been in contact with him too on various things of late.” Neither DeSantis nor either of the Thomases has explained what contact this refers to.)

The Republican Party believes that Thomas’s seamless integration of conservative-movement activism with the Supreme Court’s singularly powerful and unaccountable role in public life represents the finest and purest workings of the republican form of government. As we peer into a future of unbroken conservative control of the courts for perhaps decades to come, we should take seriously their professions of admiration for Thomas and his open contempt for the idea any ethical obligations might constrain his power.

Clarence Thomas and the Supreme Court’s Ethical Disaster