Why Clarence Thomas’s Ethical Dilemma Won’t Change the Supreme Court

Laura Litvan and Billy House
Updated ·5 min read
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(Bloomberg) -- If you thought that Justice Clarence Thomas’s unreported luxury trips and gifts from a Republican billionaire would spur ethics changes imposed by Congress, think again.

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Deep partisan divisions threaten any legislation mandating a code of conduct for the nine justices who work just across the street from the US Capitol. Lawmakers in both parties have long upheld a centuries-old tradition of letting the Supreme Court, the final arbiter of what is and is not constitutional, police itself. And Republicans, who installed a 6-3 conservative majority on the court, want to keep things exactly as they are.

Justices, confirmed by the Senate to lifetime terms, are treated with a deference not afforded any other government officials. And so they’ve operated since the nation’s founding without a formal code of ethics, unlike any other members of the federal judiciary.

The ProPublica report of the gifts Thomas received from Dallas real estate magnate Harlan Crow — and a follow-on report Thursday saying that Crow had purchased Thomas’s family home and two other Georgia properties from the justice and his relatives — come after trust in the Supreme Court hit record lows following last June’s decision to overturn the landmark 1973 Roe v. Wade decision guaranteeing abortion rights.

Less than a year later, just 44% of adult Americans approved of the job the Supreme Court is doing, while 56% disapprove, according to a March 13-22 Marquette Law School poll.

And yet a push by Senate Democrats last week to enact a code of ethics was followed this week by them kicking the effort across the street, at least initially. Democrats on Monday called on Chief Justice John Roberts to look into Thomas’s trips and requested he take the lead in adopting a code of conduct.

Roberts hasn’t given any indication that he’ll do either — in fact, he has a history of resisting such demands. In 2011 — a year of controversies involving some justices attending political fundraisers, accepting lavish gifts and having travel expenses picked up by ideological groups — he opposed the creation of an ethics code.

It’s also not clear he even has authority to impose such rules on his colleagues. That matter would, of course, be decided by the people with whom he shares the bench.

“The Supreme Court justices are extraordinarily smart people that could write a code to fit their circumstances if they wanted to,” said Steven Lubet, a professor emeritus and ethics expert at Northwestern’s school of law.

But, he added, the court’s answer has been, basically: “You can’t make me.”

Yet Congress has “clear constitutional authority to regulate judicial ethics,” according to Amanda Frost, a professor at the University of Virginia School of Law and expert on Supreme Court ethics. And Congress already regulates many aspects of the court, such as quorum and recusal requirements, the oath of office, the size of the court, and much of its jurisdiction, she said.

Separation of powers issues exist — in reality — when the court says they do. That was best underscored in 1953 by what Justice Robert Jackson famously said in a separate, concurring opinion in Brown v. Allen: “We are not final because we are infallible, but we are infallible only because we are final.”

Much of lawmakers’ hesitancy to take action has been political — rather than out of concern over the constitutional separation of powers or other legal obstacles. Republicans who control the House and who can bottle up legislation in the Senate show no signs of budging, especially with a GOP-appointed justice at issue.

“God Bless Justice Thomas and his family!” House Judiciary Chairman Jim Jordan tweeted in support of the conservative justice days after the initial ProPublica report on the trips.

Yet there’s been bipartisan resistance, too. After reports emerged in 2022 that Virginia Thomas, Clarence Thomas’ wife, sent text messages in January 2021 to then-White House Chief of Staff Mark Meadows encouraging him to contest the result of the 2020 presidential election, some lawmakers sprang into action.

Thomas didn’t recuse himself from cases involving the election and its aftermath, and was the lone dissenter when the court ordered that former President Donald Trump’s White House records must be turned over to the House panel investigating the Jan. 6, 2021, riot at the US Capitol.

The then-Democratic-led House Judiciary Committee advanced a bill sponsored by Representative Hank Johnson of Georgia that would have created a Supreme Court ethics officer and set up a process for filing complaints against the justices for ethical violations. But then-House Speaker Nancy Pelosi, a California Democrat, never put it before the full House.

Thomas has defended himself against allegations he might have violated federal law by not reporting his subsidized trips, saying he’d been advised that he didn’t have to disclose hospitality from close personal friends who don’t have any business before the court. The trips, valued in the hundreds of thousands of dollars, included a trip through Indonesia aboard Crow’s 162-foot yacht, summer vacations at his Adirondacks resort and flights on his private plane.

Other justices have taken and publicly disclosed their own travel funded by the wealthy, including a 2018 trip by the late Justice Ruth Bader Ginsburg to Israel and Jordan financed by billionaire businessman Morris Kahn and a 2013 trip by retired Justice Stephen Breyer on the private plane of another billionaire, David Rubenstein.

--With assistance from Greg Stohr.

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