Doubting Thomas

AP Photo / J. Scott Applewhite, File

Earlier this week, I wrote about four items in the news that should serve as warning shots across the bow of our democracy. Among them was a story, broken by ProPublica, that Justice Clarence Thomas and his wife Ginni Thomas have, for decades, accepted lavish gifts from billionaire Harlan Crow in the form of luxury vacations on private yachts and chartered planes. The danger, I noted, was that citizens would no longer be able to know whether Thomas was acting on behalf of the public or on behalf of his wealthy benefactor. 

Thomas brushed aside these huge lapses in reporting by claiming that 1) he had been told informally that he didn’t have to report them, and 2) Harlan Crow was a close friend and these were simply family trips. This didn’t pass the smell test because Thomas had previously been on notice of having failed to report gifts and knew there were strict requirements around reporting. Further, Crow had befriended the Thomases only after Clarence Thomas became a justice. In short, Crow wasn’t trying to make friends; Crow was trying to influence the law.

Yesterday, ProPublica followed up with an even bigger bombshell: not only had Crow showered expensive gifts upon the Thomases that went unreported, he had also bought real estate from Thomas which he failed to report. This is far more serious a problem for Thomas because the laws around disclosing the sale of investments and real property are clear, not fuzzy at all. And the transaction and arrangement that the parties made demonstrates that actual money flowed from Crow to Thomas—in short, a bribe.

Let’s take a look at that transaction more closely so that we can understand how unethical, problematic and, yes, illegal it was. Then let’s play the “How it’s supposed to work” game and zoom out to ask what the consequences ought to be, based on historical precedent. Finally, we’ll take a deep breath, because we have to walk through some fetid, political swampland that will likely prevent any immediate consequences for Thomas. But as I explain, that doesn’t mean we must simply accept the notion that there will be no consequences and things will never change.

Harlan Crow’s real interest

ProPublica led the way again with some incredible reporting on money flowing from Harlan Crow to Justice Thomas. The transaction involved the house where Thomas’s mother lived—and apparently still continues to live. Crow’s company purchased the property in 2014 for the sum of $133,363, then also bought two other vacant lots along the road. The sellers included Thomas, his mother, and Thomas’s late brother’s family.

After the sale, improvements on the house began. Crow bankrolled tens of thousands of dollars in upgrades on the modest two-bedroom, one bath home, including a carport, a roof repair, and a new fence and gate. Thomas’s mother continued to live on the property, and it isn’t clear whether she even paid any rent to Crow. (Crow was asked this directly by ProPublica, but he declined to answer.)

A Crow company also began paying the property tax bill on the renovated property to the tune of around $1,500 per year. Prior to the sale, Thomas and his wife Ginni had been paying that tax.

Federal law under 5 U.S.C. Section 13104(5)(A) requires government officials, including justices, to detail real estate capital gains on sales over $1,000. Disclosures must include the following:

a brief description, the date, and category of value of any purchase, sale or exchange during the preceding calendar year which exceeds $1,000… in real property, other than property used solely as a personal residence of the reporting individual or the individual’s spouse…

There is no ambiguity here. By selling a house to Crow in which Thomas held a property interest, Thomas was required at a minimum to disclose the sale. This stands to reason: In the absence of disclosure, wealthy men such as Crow could gain access to and leverage over highly influential public servants, such as a Supreme Court justice. Thomas would be casting his votes knowing that his billionaire “friend” not only owns the deed to the house where his mother is living, a property cared for and improved by Crow, but that key expenses for the house—including taxes, maintenance, and utilities—are also being paid for by a Crow-related company.

Crow claims that his motives were entirely altruistic. He says he wants to create a public museum someday at the Thomas’s home and maintain the “historic site” so that “future generations could learn about the inspiring life of one of our greatest Americans.” Crow is indeed a collector of odd historical artifacts, including Hitler’s paintings and Nazi memorabilia, along with statues of despots including Ceausescu, Stalin, and Lenin, all as part of a garden oasis marking “man’s inhumanity to man.” So his claims of a desire for historical preservation may not be entirely unfounded.

But it doesn’t matter. This was still a real estate transaction that financially benefited the Thomases, coming from a very rich man with strong interests in the happenings at the Court. There is no “altruism” exception to the transparency laws.

What did these investments buy Crow?

Crow and his companies had no cases directly before the Supreme Court. But his $500,000 donation to Ginni Thomas’s PAC, just as Citizens United was being decided, along with his presence on the board of right-wing think tanks such as the American Enterprise Institute (AEI) and a second group known as the Center for Community Interest (CCI), should give us all serious pause.

As ThinkProgress reported, both AEI and CCI did have matters before the Supreme Court and Justice Thomas. AEI has filed at least three Supreme Court briefs, and Justice Thomas either sided with AEI or took a position even more extreme than AEI in all three cases. CCI also had an amazing, perfect track record with Thomas, having filled eight briefs with the High Court, with Thomas voting for CCI’s preferred outcome in all eight matters, sometimes in dissent, sometimes with the majority, and sometimes as the opinion writer in a slim majority.

And while we’ll never know whether Thomas would have voted that way anyway, notwithstanding his close affiliation with Harlan Crow, these gifts and purchases were surely not provided solely out of the goodness of Crow’s heart. Crow was buying access and influence, and that by itself poisons the public trust in Thomas’s impartiality.

How it’s supposed to work 

As Adam Cohen of the New York Times editorial board reminds us, there was once a liberal justice named Abe Fortas who did something fairly minor by comparison which wound up costing him his seat on the Court back in 1969. 

Fortas was forced to quit the Supreme Court after a secret financial relationship with a rich friend came to light.

In that case, Justice Fortas, a staunch liberal, had accepted $20,000 to consult for a foundation working for civil rights and religious freedom. The founder of the group where Fortas consulted, however, was something of a shady businessman who was eventually convicted on securities violations. 

Fortas quit the foundation and returned all the money. But Life magazine did a report on these original ties and on the returned money, and it became a scandal, one which grew with an assist from the Nixon Administration along with some improper leaks to help drive Fortas out. 

Republicans predictably demanded Fortas’s resignation, but here’s the thing that seems so quaint and honorable by today’s standards: Democrats joined in the calls, too. These included Sen. Walter Mondale and one of Fortas’s biggest supporters, Sen. Joseph Tydings of Maryland.

The Democrats called for Fortas to step down, even though they knew that Nixon would get to appoint his successor and tip the balance of power in the Court from liberal to conservative. But Democrats placed court and country over party. “The confidence of our citizenry in the federal judiciary must be preserved,” Tydings declared.

By contrast, with the huge scandal now engulfing Thomas, Republican leaders and the Chief Justice have been completely silent. For them, the extremist stranglehold by the Court’s 6-3 majority cannot be threatened by anything, even when it’s clear that a Justice is literally on the take. And that speaks volumes about how far we have slipped as a functioning democracy.

So what can be done?

There are organizations such as the Judicial Conference of the United States that oversee the federal judiciary. If they launched an investigation, as they should, they could refer the matter to the Justice Department for action. The Ethics in Government Act requires the filing of annual financial reports by senior government officials. It also requires a referral to the Attorney General by the relevant supervisory body (here, the Judicial Conference) if it “has reasonable cause to believe” that someone “has willfully failed to file information required to be reported.”

But before we get excited, understand that 1) the Judicial Conference is highly unlikely to act against Thomas, based on past history, and 2) this law basically has no teeth, because at most Thomas would receive a simple fine for violating it.

That means the consequences for Thomas must arise from our politics. As with Abe Fortas, Republicans ought to do the right thing and call for Thomas to step down for so flagrantly breaching the public's trust. But with the GOP now solidly an anti-democracy party that seeks to hang on to power at all costs, its leaders will simply say nothing if not rush to his defense by labeling the investigation and reporting “political.”

The hard truth is that the only way Thomas will ever suffer consequences is if the voters penalize the GOP for failing to impose them. We are a long way from that, and this case shows in stark terms just how far. But as supporters of ethics and the rule of law, it is incumbent on us not to let the issue die, even as the sheer level of corruption of the GOP (from the Trumps to the Thomases) seeks to numb us into a new normal. 

This much is clear: Nothing about a Supreme Court justice accepting and failing to report direct funds from a billionaire who has interests in cases before the Court is normal. It is, and should be, a scandal of the highest order. It also should be a question posed by the media to each and every GOP politician who has failed to speak out on it. Only the electorate has the power to fix this, and they can do so only through penalizing the party that fails to abide by democratic norms. That means the electorate must remain informed and motivated by things like media coverage.

A majority of U.S. voters do still believe in accountability, democracy, and ethics. It is ultimately this majority that must return us to sanity and political norms. We got a taste of what is possible in recent electoral victors, from the midterms in 2022 to the recent walloping of the extremist state Supreme Court candidate in Wisconsin. We can, and must, carry and grow that energy as we enter the pivotal 2024 election cycle.