The Supreme Court’s Next Big Tax Case Demands Clarence Thomas’ Recusal

A closeup of Thomas' face.
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This coming term, the Supreme Court will hear United States v. Moore, a case that could determine the constitutionality of a hypothetical wealth tax. Given his years of palling around with billionaire benefactors, one thing seems quite clear: Justice Clarence Thomas needs to recuse himself from the case. Commentators who downplay Thomas’ acceptance of massive gifts ask: Maybe it looks bad, but why does it matter? Moore tells us loud and clear.

Moore involves a provision of the 2018 Trump tax bill enacting a “mandatory repatriation tax” for any U.S. taxpayer who owns shares in a foreign corporation, even if the taxpayer never cashed out the money, but automatically reinvested it. Behind this seemingly abstruse issue is a crucial constitutional question: Does the 16th Amendment, which enables the federal government to tax “income,” allow the government to put levies on taxpayers’ assets if they didn’t actually get the money in cash?

In other words, can the federal government place a tax on wealth? This has real implications for both the budget and inequality. Indeed, most ultra-high-wealth individuals possess their assets: They make investments, and hold them. When they die, their heirs’ tax is figured not on the amount of profit earned off of the original cost, but the amount of profit earned off of its value at the time of the original purchaser’s death. Thus, hundreds of billions of dollars go untaxed—which is just the way multibillionaires like it. Sen. Elizabeth Warren has advocated for a federal wealth tax for years, and she is far from alone: Sen. Ron Wyden, chair of the tax-writing Senate Finance Committee, has advanced similar proposals, as has President Biden.

Here’s where Thomas comes in. As ProPublica has extensively documented, a small group of billionaires including Harlan Crow, David Sokol, the late Wayne Huizenga, and Paul “Tony” Novelly have provided extraordinary benefits to Thomas, including at least 38 destination vacations, 26 private jet flights, six helicopter flights, yacht voyages (including to the Bahamas), a dozen VIP passes to sporting events, and much, much more. Our current tax system does a wonderful job of taxing your wages and mine, but it leaves vast pools of wealth completely untaxed—often for generations. Folks like Crow, Sokol, and Novelly (as well as Huizenga’s heirs) would very much like to keep it that way. Thomas may soon have the opportunity to help them. (It’s worth noting that Justice Samuel Alito has his own very real conflict concerns, as well.)

None of this is speculative. As tax experts Reuven S. Avi-Yonah and Steven M. Rosenthal explain:

The courts have permitted, for many decades, Congress to tax a corporation’s undistributed investment income to the controlling stock holders of personal foreign investment companies and CFCs (and Congress continues to tax these undistributed earnings). These rules prevent wealthy Americans and US multinationals from using foreign corporations like uncapped traditional Individual Retirement Accounts.

But, as Avi-Yonah and Rosenthal further explain, Moore “could force Congress to rewrite major parts of our international, pass-through, and financial tax regimes.” Crow, Sokol, and Novelly have deep interests in these rules as well.

Again, it comes back to Thomas; 28 USC 455 requires the recusal of any justice whose “impartiality might reasonably be questioned” or who “has any interest that could be substantially affected by the outcome of the proceeding.” It beggars belief that a man who has accepted—and continues to accept—literally dozens of fabulously expensive gifts and vacations from billionaires—and whose mother still lives in a house that a billionaire, Crow, purchased for her—would be impartial to a case that the entire billionaire class has such an overriding and specific interest in.

Even Justice Antonin Scalia might agree. In his March 2004 memorandum explaining why he would not recuse himself in a case where the defendant was his good friend Vice President Dick Cheney, Scalia observed that “friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue.” Moore is precisely such a case. Crow and Thomas’ other ultra-high-wealth friends potentially stand to lose billions of dollars if the court rules in favor of wealth taxes.

Importantly, we have a very recent example to follow. Justice Ketanji Brown Jackson, before she was elevated to the court, announced that she would not hear the case regarding affirmative action at Harvard University. She had previously served on Harvard University’s Board of Overseers, the larger and less powerful of the university’s two governing bodies. In that capacity, she received no compensation, and the board was not involved in admissions decisions. But much to the consternation of affirmative action advocates, Jackson said that it might create the appearance of a conflict of interest and did not participate in the case (although she did participate in the companion case regarding the University of North Carolina).

Let’s compare the two. One could argue that because Jackson had a formal connection to Harvard, and Thomas has no formal connection to his billionaire friends, Jackson had to recuse and Thomas doesn’t. Such an argument, however, turns ethics into a laughingstock. When she recused, Jackson was no longer affiliated with Harvard. She received no compensation for being an overseer. Thomas, on the other hand, still gets lavish gifts from his billionaire friends. Harland Crow purchased his mother’s home for her.

As trial attorneys tell juries: Use your common sense. Who has more influence over the judge in question: Harvard University or Thomas’ billionaire friends? Is someone more likely to favor their alma mater or people who continue to give them millions of dollars in presents, rewards, and favors? Would someone be more inclined to prefer their closest friends, who have literally erected shrines to them, or an institution that they have no true personal connection to? To ask these questions is to answer them.

One can imagine the obvious objection: Where does this stop? The Supreme Court handles issues that affect high-wealth individuals all the time. Must Thomas recuse himself from all of them?

The narrow answer is: Of course not. Moore is not your run-of-the-mill Supreme Court case, or even your run-of-the-mill Supreme Court tax case. It implicates one of the most hot-button issues in federal tax policy that has a direct bearing on ultra-high-wealth individuals. It is relevant, and worthy of Supreme Court consideration in the first place, precisely because of its vast importance to billionaires.

But the broader answer is: What if it does? Maybe the answer should be that if you want to be a Supreme Court justice, you cannot become the “kept man” of a small group of billionaires. Somehow every other Supreme Court justice has avoided it, at least as far as we know. The vision of an enormously powerful justice receiving millions of dollars in gifts from friends and then ruling on a case that could give enormous benefits to those friends is precisely the example of an interlocking elite feared by millions of Americans.

Crow has said that it is “kind of weird to think that if you’re a justice on the Supreme Court, you can’t have friends.” Precisely so. What a justice can’t do is rule on a case that could give those friends vast benefits. If those friends might be less interested in the friendship were the justice to recuse himself, well, that is the entire problem.