For Clarence Thomas, a gross lack of ethics | Editorial

Long before Clarence Thomas, the conservative justice, there was Abe Fortas, the liberal justice.

Fortas was the brilliant lawyer who represented the indigent Florida convict Clarence Earl Gideon, and won the historic Supreme Court case establishing the right to counsel in a state felony trial.

President Lyndon Johnson appointed Fortas to the Supreme Court in 1965 and nominated him three years later to be chief justice upon Earl Warren’s retirement. But a filibuster thwarted the promotion. It came out that Fortas had been privately advising Johnson and lobbying senators on the Vietnam War. His former law partner had recruited clients with potential Supreme Court cases to pay Fortas $15,000 a year to teach summer school at a university.

Later, the Justice Department found that Fortas had accepted a $20,000-a-year retainer to serve on the board of a charitable foundation run by Louis Wolfson, a Jacksonville financier facing imprisonment for securities law violations. Threatened with impeachment, Fortas resigned.

Lavish trips for 20 years

If consistency were a virtue in politics and hypocrisy were shunned as a vice, Thomas would be under enormous pressure to resign over his failure to report the personal benefits he’s received from the Texas real estate billionaire Harlan Crow. Crow treated Thomas and his wife to years of lavish foreign and domestic vacation junkets. In 2014, he paid $133,633 to Thomas, his mother and the family of Thomas’ late brother to buy the justice’s boyhood home in Savannah, which he says he intends to make into a museum to honor Thomas. Thomas did not report the vacation largesse or the direct payment despite what appear to be specific requirements of federal law.

Crow is a major Republican donor and supporter of conservative organizations, including the American Enterprise Institute and the Hoover Institute.

The largesse, exposed by the investigative news website ProPublica, spanned more than 20 years and included yacht cruises and private jet flights for Thomas and his wife. It ought to have been illegal, but wasn’t.

Thomas at least had a legal obligation to report them, ProPublica said, like other judges, Congress members and other high federal officials.

In response, Thomas said that “early in my tenure on the court,” he sought advice from colleagues and others, “and was advised that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable. I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines,” he said.

If that’s what he was told, it was bad advice.

Last month, however, the Judicial Conference of the United States instructed justices and other judges to report travel by private jet as well as stays at commercial properties. Thomas said he will comply.

Gross breach of ethics

Regardless of what others may have told him, his long years of nondisclosure reflected a gross breach of ethics. That’s nothing new for Thomas, who has continued to hear issues arising from the 2020 election despite his wife’s involvement in efforts to overturn Joe Biden’s election and keep Donald Trump in office.

The Supreme Court is the only court not bound, as it should be, by the Code of Conduct for United States judges. It provides that a judge “should avoid impropriety and the appearance of impropriety in all activities.” If the justices will not adopt that for themselves, Congress should do it for them.

Unlike 1969, when a Democratic Congress might well have impeached Fortas, today’s Republican-controlled House is no threat to Thomas. Rep. Alexandria Ocasio Cortez, the progressive New York Democrat, has called for his impeachment, but the only Republicans heard to criticize Thomas have been two former members, Adam Kinzinger of Illinois and Denver Riggleman of Virginia.

Senate Democrats have called for an investigation, but the Senate can’t initiate an impeachment. At the least, however, the Judiciary Committee should shine light on the lack of a Supreme Court ethics code and ask whether the justice and his wife paid income tax on the value of Crow’s extravagant hospitality.

Crow is also a trustee of the Supreme Court Historical Society, an organization with special access to the justices. In January, the New York Times reported that it had raised more than $23 million over the previous two decades, including at least $6.4 million from interests or lawyers that had cases before the court.

While the court was investigating the still-unsolved leak of Justice Samuel Alito’s draft opinion repealing Roe v. Wade, the Rev. Rob Schenck, a former anti-abortion leader, said he had been tipped to an earlier forthcoming opinion, also written by Alito, that would allow employers to refuse for religious reasons to pay for contraception coverage for their workers.

He said he been told of the outcome by a wealthy donor who, with her husband, had dined with Alito and his wife. The couple had met Alito through the Historical Society. Alito denied leaking the opinion.

Judges are not expected to lead cloistered lives. But they should govern themselves with far more discretion than Thomas, who has done lasting damage to the high court’s credibility.

(Editor’s note: This editorial has been revised on line to reflect the news of the Savannah property purchase, which was reported after the original editorial had been published.)

The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at letters@sun-sentinel.com.