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Op-Ed | The American Prospect | April 10, 2023

If The Law Is Legitimate, Clarence Thomas Must Stand Trial

Congressional OversightEthics in Government
If The Law Is Legitimate, Clarence Thomas Must Stand Trial

Americans are taught in high school civics classes that our laws are legitimate because they apply to everyone equally. This has never been true. But if we even want to pretend that we believe in this ideal, then Congress must immediately investigate Supreme Court Justice Clarence Thomas.

Recent reporting indicates that Thomas has broken the law, knowingly and repeatedly, for two decades. If an investigation corroborates this reporting, then Thomas must immediately be impeached and removed from the bench.

If Congress instead greets these allegations with a perfunctory shrug, then this country can no longer claim to even theoretically believe in equal justice under law. Congressional inaction would set a precedent that the Supreme Court appointees need not abide by the laws they interpret. “When the president does it, that means that it is not illegal,” Richard Nixon said 46 years ago. Congress would be extending that pathology to the Supreme Court if they do nothing.

On Thursday, ProPublica reported that for two decades, Thomas has secretly taken luxury global vacations at the expense of conservative mega-donor Harlan Crow, a patron of right-wing political influence groups including the Club for Growth, American Enterprise Institute, and Hoover Institution. Thomas also accepted expensive gifts from Crow, such as a $19,000 Bible once owned by Frederick Douglass, and regularly vacationed at Crow’s retreat in the Adirondacks. There, Thomas held court, so to speak, with conservative luminaries like Leonard Leo, the architect of the right-wing Federalist Society and dark-money financier of other conservative projects.

Thomas’s failure to disclose these gifts directly violates the post-Watergate Ethics in Government ActHe claims that this all falls under an exception for “personal hospitality” from friends, a reading so tortured it would make the statute pointless. That exception doesn’t apply if the “personal hospitality” involves official government business. How can regular meetings with the leading legal minds of the conservative movement, whose organizations regularly appear before the Court or file amicus briefs in major cases, not be considered “official business”? Thomas once swore in a federal judge in Crow’s personal library, almost certainly taking Crow’s private jet to and from D.C. in the process. Thomas is asking the public to ignore what their lying eyes are showing them.

This is not even the first time he has been caught in this exact scandal. In 2004, the Los Angeles Times reported that Thomas was receiving these same gifts from Crow, down to the Douglass Bible detail, without disclosing them. According to ProPublica, he simply went right back to accepting these gifts without disclosure. Thomas’s fix for the ethical violation, then, was to try to make it harder to track.

There is no reasonable ambiguity about this. If the ProPublica reporting is accurate, Thomas has knowingly and brazenly violated federal ethics law for decades.

Nor is this even Thomas’s only disclosure scandal. In 2011, Thomas was forced to amend 20 years’ worth of disclosure forms after Common Cause “questioned the omission of his wife’s place of employment.” He lied, under penalty of perjury, for decades when asked if his spouse had an income. Congress and then-President Obama did absolutely nothing in response.

No one should have ever believed that Thomas observed an ethical code in the first place. During his confirmation hearings, legal scholar Anita Hill famously testified to Thomas’s serial sexual harassment. She was vilified and slandered for it, which then-Senate Judiciary Committee Chair Joe Biden allowed to stand before cutting the hearings short and denying three other women who had prepared to testify to Thomas’s behavior the chance to speak.

Since then, Thomas has made it as plain as humanly possible that he is a purely partisan tool. Over decades of Supreme Court proceedings, he has barely asked any questions. He is there to rule in favor of the maximally conservative position, and he has no interest in maintaining any illusion otherwise. See, for example, his spiteful concurrence in last year’s Dobbs ruling, where he makes clear that he’d like to invalidate other privacy-derived rights, such as same-sex marriage and contraceptive access. Being relentlessly partisan on the Court isn’t illegal. Consistently violating the law is.

Speaking of which, the January 6th Committee revealed that Thomas’s wife Ginni repeatedly urged Trump’s chief of staff Mark Meadows to help overturn the results of the 2020 election. Later, Justice Thomas refused to recuse himself from hearing Donald Trump’s petition to prevent the House of Representatives from gaining access to January 6th–relevant documents. The Court ultimately ruled against Trump. Thomas was the lone dissenter.

Thomas’s latest scandal is not even that unusual for this right-wing Court. Shortly after destroying Americans’ rights to control their own bodies last year, Justice Samuel Alito enjoyed an ostensibly academic trip to Rome on the dime of the Religious Liberty Initiative at Notre Dame University, which files frequent amicus briefs before the Court.

The difference here is that Thomas may have somehow managed to knowingly break one of the vanishingly few ethics laws for Supreme Court justices that do exist. These allegations demand an investigation and trial.

The conservative movement will, of course, immediately mobilize not only to prevent Thomas from facing any accountability, but to destroy anyone who even attempts to do otherwise. Conservatives have developed a full victim complex on Ginni Thomas’s behalf, and Republicans responded to the arraignment of former President Donald Trump by calling to starve the agencies that investigated him of funds. Defund policing for me, but not for thee.

House Judiciary Committee Chair Jim Jordan (R-OH) is leading that particular charge. Jordan will almost certainly not do the right thing and draft articles of impeachment. Democratic representatives should fight the noble fight to draft their own articles—Rep. Alexandria Ocasio-Cortez (D-NY) rightly called for impeachment within hours of the ProPublica story’s publication—but the Republican Party hates equality under the law too much for anyone to have much faith in the success of that project.

That means Senate Judiciary Committee Chair Dick Durbin (D-IL) now has an extraordinary responsibility. He must immediately begin a thorough investigation to determine if ProPublica’s reporting is accurate. Thomas should testify as part of that investigation.

Figuring out the facts will not be difficult. According to the story, Crow literally hung a kitschy painting in his Adirondacks resort of Thomas smoking cigars with the masterminds of the conservative legal movement. One of ProPublica’s photos of the Thomases vacationing with the Crows came from a public Instagram account.

The difficult part will be getting Congress to treat this investigation with the urgency it deserves, and perhaps more important, ending the perverse way leading liberal scholars think about the Court of their dreams.

For decades, ostensible liberals, often anticipating potential future business before the Court, have treated conservative jurists like Thomas as walking gods on Earth, simply because of their job title. Originalism, the Federalist Society’s go-to tool to shoot down any government intervention, has been mythologized as some high-minded theory, even though it’s not consistently applied, and has now given way to the “major questions doctrine,” which suggests that even textual basis for a policy is not enough if it’s not specific. (Does Thomas actually think it was Congress’s original intent for judges to take multimillion-dollar gifts from political activists who appear before their court, so long as they called them “personal hospitality” when anyone asked questions?)

The unspoken assumption is that, by definition, Supreme Court justices cannot be unethical, partisan cynics. It is an absurd, self-serving mythos propagated by legal elites who have earned the American people’s abhorrence.

Thomas’s ethical quagmire exposes the Supreme Court’s self-mythology for the lie that it is. “Public trust in SC is already bad. A big circus would destroy it completely,” one Democratic congressperson apparently texted a Democratic strategist. Then let it be destroyed.

If the highest justices in the country regularly violate the laws they interpret, then they do not deserve to be arbiters of legality. Failing to act on something this clear means Democrats accept that regular people have no guaranteed rights, and those with power and prestige can do no wrong. Refusing to create “a big circus” might maintain congressional Democrats’ personal delusions of bipartisan comity, which has never been reciprocated. The cost of this self-serving fantasy, though, would be any fleeting claim that the United States government has legitimacy in the first place.

Anyone who does not endorse vigorous, unflinching congressional action believes one or both of the following: that powerful conservatives have an absolute right to do whatever the hell they want, and that keeping a pleasant atmosphere between Democrats and Republicans at D.C. cocktail hours matters more than the consent of the public to their being ruled. It’s as simple as that.

PHOTO CREDIT: “Justice Clarence Thomas” by Cknight70 is licensed under CC BY 2.0.

Congressional OversightEthics in Government

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