Clarence Thomas’s brazen violation of ethics rules, briefly explained

Justice Clarence Thomas, wearing black robes, is pictured from the waist up, walking past the viewer and looking ahead.
Supreme Court Justice Clarence Thomas attends the swearing-in ceremony for new Justice Amy Coney Barrett, at the White House in October 2020. | Tasos Katopodis/Getty Images

By allegedly accepting luxury trips from a Republican megadonor — and not disclosing them — Thomas may have run afoul of federal ethics law.

Supreme Court Justice Clarence Thomas has accepted luxury trips from a major Republican donor — and failed to disclose them — for over two decades, according to a bombshell ProPublica report that was published on Thursday.

Thomas’s lack of disclosure about these trips is a clear violation of government ethics law, legal experts told Vox. Federal judges, including Supreme Court justices, are required to disclose such gifts under the Ethics in Government Act, which establishes rules for federal officials regarding what’s acceptable. As detailed by the law, transportation gifts, like those that Thomas accepted, need to be divulged.

The ProPublica report puts Thomas’s commitment to ethical conduct under new scrutiny following his refusal to recuse himself from litigation related to the January 6, 2021, Capitol insurrection, even as his wife, Ginni Thomas, played a direct role in trying to overturn the 2020 election results. More broadly, it serves as a reminder that Supreme Court justices face limited oversight or accountability — and have long refused to publicly engage with calls for stricter ethics rules.

In the past, lodging and food provided on someone’s property has been exempted from disclosure requirements, but transportation, which Thomas accepted, has not been. Per ProPublica, the “extent and frequency” of gifts that Thomas received from Republican megadonor Harlan Crow — which included flights on private jets and trips on luxury yachts — have “no known precedent in the modern history of the U.S. Supreme Court.”

As detailed in the story from Joshua Kaplan, Justin Elliott, and Alex Mierjeski, Thomas went on at least six trips that involved use of Crow’s private jet including to places like Indonesia, upstate New York and New Haven, Connecticut. Thomas also stayed at Crow’s private resort in the Adirondacks on an annual basis, and used his superyacht on luxury vacations. The degree to which Thomas utilized Crow’s gifts is believed to be uncommon.

“This is beyond anything that I’ve ever seen across any branch of government,” Virginia Canter, the chief ethics counsel at CREW, the Citizens for Responsibility and Ethics in Washington, told Vox.

In addition to the problems of a member of the highest US court seeming to break disclosure laws, Thomas’s actions raise concerns about influence. Crow, a real estate magnate, is a major donor to Republican organizations including the Club for Growth and the Federalist Society as well as a board member of the American Enterprise Institute and the Hoover Institution. He has also donated hundreds of thousands of dollars to a Tea Party organization founded by Ginni Thomas — one that paid her $120,000, ProPublica notes.

Crow told ProPublica he has not discussed pending cases or sought to influence Thomas, though it’s clear he has partisan stances and affiliations that could be tied to specific cases. Thomas did not respond to ProPublica’s list of questions.

For now, it’s not yet clear what the recourse will be for Thomas’s actions. There are both civil and criminal penalties that the Justice Department could pursue for violations of the Ethics in Government Act, which would likely be fines. Progressive advocacy group Demand Justice has also called on senators to scrutinize Thomas’s actions and hold hearings that examine and raise awareness about his “apparent lawbreaking and the Republican justices’ deep ties to far-right donors.” Others, including Rep. Alexandria Ocasio-Cortez (D-NY), have urged Thomas’s impeachment.

It’s also possible, however, that the justice will face no consequences. Thomas’s actions, ultimately, underscore how little accountability there is for Supreme Court Justices when it comes to ethical concerns.

“We are leaving it up to the justices themselves to decide what’s appropriate. Well, you can see that Justice Thomas has … just blown through these apparent standards,” says Carter.

There’s limited accountability for Supreme Court justices

A major issue raised by Thomas’s actions is that there’s currently limited accountability for Supreme Court justices even if they make ethics violations as egregious as those documented by ProPublica.

“One of the long-running dynamics that makes it challenging when we talk about Supreme Court ethics is that short of impeachment, there’s not really disciplinary measures in place for Supreme Court justices,” says David Janofsky, a policy analyst for the Project On Government Oversight. For a justice to be impeached, both a majority in the House and two-thirds of members in the Senate would have to vote in favor of doing so, an unlikely outcome under the currently divided Congress. That means that there are essentially no serious consequences for misconduct.

In this particular situation, the most extensive disciplinary measure would likely come from the DOJ if the attorney general winds up deciding to pursue Thomas for any legal violations. Under the Ethics in Government Act, the attorney general can decide to investigate a judge’s actions and identify potential consequences. The Court itself, however, has limited internal mechanisms for processing ethical violations.

“The Supreme Court doesn’t have any formal process for ensuring the justices comply with ethics rules,” says Kedric Payne, the senior director of ethics at the Campaign Legal Center.

The lack of accountability for the Supreme Court has prompted calls for reform in recent years. In particular, members of Congress have pushed for the high court to establish a clear code of conduct, which would lay out specific rules of what they can and can’t do. Unlike other state and federal courts, the Supreme Court does not currently have a code of conduct. In the last four years, the Supreme Court has had internal discussions among the justices about establishing a code of ethics, though they haven’t been able to agree on one.

Requiring the Supreme Court to adopt a code of conduct, an idea previously spearheaded by former Democratic Rep. Louise Slaughter, would force the high court to set up clear guidelines for recusal, divestment from financial interests, and gifts. Currently, Democrats, led by Sen. Sheldon Whitehouse and Rep. Hank Johnson, have also introduced legislation in the form of the Supreme Court Ethics, Recusal, and Transparency Act to mandate that the court establish a code of ethics, and set up more stringent requirements for disclosures and conflicts of interest. That bill would also establish a process to investigate misconduct by justices.

Another bill from Sen. Chris Murphy and Rep. Johnson, called the Supreme Court Ethics Act, would similarly mandate the Judicial Conference of the US establish ethics rules and appoint an ethics lawyer with the ability to investigate violations. Recently, Sen. Chris Van Hollen (D-MD) has also floated tying funding for the Supreme Court to the requirement of a code of conduct.

Historically, the Supreme Court has not had such requirements, or even an internal ethics office, because they’ve said they operate on norms and voluntarily adhere to such guidance. Each justice also has significant discretion when it comes to compliance to these norms, as well as decision-making around recusal from cases.

“They are the only organization in the entire United States government that has no mechanism for investigating alleged ethics violations,” Whitehouse previously told the Washington Post. “It’s crazy.”

Increasingly, the Court has also faced calls to adopt some sort of ethics rules or code of conduct from outside organizations, including the powerful American Bar Association, which helped create the code of conduct all other federal judges follow. Those calls have been met only with “study and consideration,” according to the New York Times.

You May Also Like