How questions about Justice Thomas' ethics could harm the Supreme Court's reputation
For years, as members of Congress and people in the executive branch suffered through embarrassing headlines about ethics lapses, the U.S. Supreme Court seemed to occupy something of a moral high ground. But a bombshell report from ProPublica this month may have changed that. Reporters with ProPublica documented a long relationship between Thomas and Republican donor Harlan Crow, in which the billionaire showered Thomas and his wife with luxury vacations for more than 20 years.
The Senate Judiciary Committee - which is controlled by Democrats - plans to hold a hearing on the Supreme Court's ethical standards, and may even call Justice Thomas to appear. After a meeting of Democrats on the committee Monday night, Committee member Sen. Richard Blumenthal (D-Conn), who has been searing in his criticism of Justice Thomas, said he hoped Justice Thomas would appear voluntarily.
The headlines about Justice Thomas keep coming. This week, the Washington Post reported that Thomas continued to claim annual rental income from a real estate firm that ceased to exist in 2006.
"Taken together with other errors and omissions on his financial disclosure forms over the years, it's part of a pattern that has raised questions about how seriously he views his responsibility to accurately report details of his finances to the public," Post reporter Emma Brown told NPR's Leila Fadel on Morning Edition.
Thomas has not responded to the Post report on the real estate earnings. He defended the non-disclosure of Crow's gifts in a statement, saying he'd been advised that gifts from a friend who had no business before the court were not reportable.
But some ethics lawyers reject that. NPR's Michel Martin spoke to two experts: Virginia Canter, chief ethics counsel at Citizens for Responsibility and Ethics in Washington, and Julian Zelizer, a professor of history and public affairs at Princeton University.
This interview has been lightly edited for length and clarity.
Interview highlights
On whether Justice Thomas abused his office
Virginia Canter
It's our nation's highest court. And the fact that he was accepting – repeatedly – private plane trips, yacht cruises, luxury resort vacations, without disclosing them, indicates he was in violation of the Ethics in Government Act, which was an act passed by Congress after Watergate.
The only exception for reporting gifts from friends is something called the personal hospitality exception, and it only applies to food, lodging and entertainment. It does not at all apply to transportation. They can only be accepted from someone with whom he had a personal relationship, and that it was a reciprocal relationship. In other words, as a friend, I invite you over to dinner and you invite me over to dinner. That's reciprocity. But there's no way Justice Thomas and his wife could ever afford these types of gifts, let alone reciprocate them. The fact that they met after he took office completely undermines the argument that it was a pre-existing personal relationship.
On the existing ethics standards for the Supreme Court
Virginia Canter
On the lower court, federal judges are subject to a misconduct review that would be carried out through a very detailed process. However, there's no similar type of accountability at this time for any member of the Supreme Court, which is why there has been such a strong push by members of Congress for the Supreme Court to adopt a code of conduct that would establish a framework for addressing and investigating misconduct.
Julian Zelizer
There's different modes of enforcement. Obviously, the court could police itself. There could be some kind of internal mechanism of investigation, which can happen already. And ideally, that is the best way for the court to handle this. But the other avenue would be legislating this problem. I don't know what kind of mechanism you can set up, but it would be externally put into place rather than just depending on the Chief Justice to do this on their own.
On whether ethics questions undermine the Supreme Court's authority
Julian Zelizer
The stories that now surround Justice Thomas are bringing immense questions, not just about him, but about how the Court operates. How do we police what justices do and cannot do, and can we have confidence that justices in the highest court of the land are making decisions based on their interpretation of the law rather than their political preferences? I think we're at one of these important, pivotal turning points when the Court has to decide what it's going to do, if anything. And if the court isn't going to do something, will Congress perhaps step in?
On whether the ethics issue rises above politics
Virginia Canter
I think the American people intuitively understand when officials are potentially engaged in corrupt activity. They have a visceral reaction to it, there is a line that cannot be crossed, and I think this is probably one of them. By accepting these gifts, the Justice has completely undermined the public's trust in the ability of the court to faithfully and impartially discharge their obligations, to apply equal justice under law. The problem here is you really can't put the genie back in the bottle. You can't just have him say, 'I'll go back and report these gifts.' I'm not sure how we restore the integrity of the court after these events have occurred.
Julian Zelizer
We've had moments where the American public can look at behavior that's happened in the past, when it actually shakes some of the partisan status quo and leads to a push for some kind of reform. We just had passage, for example, of a reform of the Electoral College system. It was a moderate reform, but it was in the aftermath of what happened in 2020. And there's something about this story. It's so personal, it's so vivid. It could give some fuel to public support for institutional reforms. I think many Americans, including many independents, will understand this is not right for the Court, for the system. And that's how you can get a moment when you can break through an unwillingness to change how institutions work.
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Transcript
A MARTÍNEZ, HOST:
A report from ProPublica last week documented a long relationship between Justice Clarence Thomas and Republican donor Harlan Crow, where for more than two decades, Crow took Thomas and his wife on trips that included private jets and yachts, trips that were not originally disclosed, sparking the question, can Democrats and Republicans unite behind changing ethics rules for Supreme Court justices? Our co-host Michel Martin spoke with two experts on this - Julian Zelizer, a professor of history and public affairs at Princeton University, and Virginia Canter, chief ethics counsel with Citizens for Responsibility and Ethics.
VIRGINIA CANTER: The fact that he was accepting, repeatedly, private plane trips, yacht cruises, luxury resort vacations, without disclosing them indicates he was in violation of the Ethics in Government Act, which was passed by Congress after Watergate. That clearly gave him the obligation to disclose these gifts of travel and which he had previously disclosed on earlier occasions.
MICHEL MARTIN, HOST:
Well, talk about the friend piece, though, 'cause they both insist that they're just friends and that some friends give friends a ride home in their station wagon. You know, some friends give other friends a ride on their private jet. Does it matter?
CANTER: There's two things about that. One is that in terms of disclosure, the only exception for reporting gifts from friends is something called the personal hospitality exception, and it only applies to food, lodging and entertainment. It does not at all apply to transportation. And then the other problem is that in terms of accepting a gift under the, you know, judicial gift regulations that apply to him, they can only be accepted from someone with whom he had a personal relationship, and that would be evidenced by facts that would show that he had a preexisting relationship before he went on the bench and that it was a reciprocal relationship. In other words, as a friend, I invite you over to dinner, and you invite me over to dinner, right? That's, you know, reciprocity. But there's no way Justice Thomas and his wife could ever afford these types of gifts, let alone reciprocate them.
MARTIN: And the fact that Harlan Crow met Justice Thomas after Justice Thomas joined the court in 1991, is that a relevant fact here?
CANTER: Yes. The fact that they met after he took office completely undermines the argument that it was a preexisting personal relationship.
MARTIN: Professor Zelizer, you wrote an op-ed for CNN that said the court is already in a crisis of legitimacy and that this does not help. Could you say a little bit about that? Like, why do you say that the court is in a crisis of legitimacy?
JULIAN ZELIZER: I mean, first, there's just polling that shows one of the institutions that somewhat withstood the aftermath of Vietnam and Watergate, an era when we have seen rising levels of distrust in government institutions, the polls are now falling on the court. I think institutions depend on some kind of accountability, and the stories that now surround Justice Thomas are bringing kind of immense questions, not just about him but about how the court operates. How do we police what justices do and can't do? And can we have confidence that justices in the highest court of the land are making decisions based on their interpretation of the law rather than their political preferences?
And I think we're at one of these important pivotal turning points when the court has to decide what it's going to do, if anything. And if the court isn't going to do something, will Congress perhaps step in? And so those are the reasons I see this as incredibly problematic for the institution, not just the person who's the focus of this.
MARTIN: Miss Canter, can we talk a little bit about what other federal workers and appointees are required to disclose? Let me just mention here. We spoke with a former attorney for a federal agency. His name is Joel Cockrell (ph). He told us about the strict ethics rules he was required to follow over his long federal career. He talked about limitations on giving and receiving gifts and attending events and why those rules existed. Let me just play that for you.
JOEL COCKRELL: I think they were designed to make sure there was no pretense or even an appearance of impropriety. The message he sends, the appearance of impropriety, which was drilled into us time and time again, he doesn't seem to care about. And I don't know if they're going to do anything about it at all. That's what's really troublesome.
MARTIN: Tell me a little bit about what rules just regular folks working for agencies have to comply with and how is it different for Supreme Court justices, if it is?
CANTER: For regular government employees, they are bound by very strict regulations which actually bar them from accepting any gift that exceeds $20. So something like private aircraft, yacht cruises, luxury resort stays - it's just completely out of their...
MARTIN: Out of the question. It's just out of the question. When issues like this arise, supporters of the individuals tend to think that people are just being haters, basically. The only people who care about this are people who don't like these people or their politics, anyway. And I just wanted to ask if either of you feels that there might be a point at which people from both parties might see this as a problem. Professor Zelizer, what do you think?
ZELIZER: The flip side isn't simply that why are Democrats focused on this? It's why are Republicans not more concerned about this? Which is another element of the politics. But look - we've had moments where the American public can look at behavior that's happened in the past that hasn't really come under a spotlight, and a story, an individual story, becomes so egregious that it actually shakes some of the partisan status quo. And I think many Americans, including many independents, will see this, and they'll just understand this is not right for the court, for the system. And that's how you can get a moment when you can break through an unwillingness to change how institutions work.
MARTIN: Julian Zelizer is a professor of history and public affairs at Princeton University. Virginia Canter is chief ethics counsel with Citizens for Responsibility and Ethics in Washington. Thank you both so much for joining us.
ZELIZER: Thanks for having us.
CANTER: Thank you. Transcript provided by NPR, Copyright NPR.
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