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Recent reporting from ProPublica raises significant ethics concerns about a host of extravagant trips that Supreme Court Justice Clarence Thomas and his wife accepted, and failed to disclose, from a friend who also happens to be a billionaire Republican donor. We learned Thursday that Thomas also failed to disclose a real estate deal with the donor, Harlan Crow.
Thomas’ response to the initial revelation might be even more concerning than the reporting.
Under previous judicial ethics rules, it appears that Thomas’ unreported travel was just barely squeaking by as allowable. Until a recent update in March, it seems that trips like this could fall under a “hospitality” exemption that other justices have used over the years. That is important to emphasize.
While Thomas may not have violated the rules as they existed when the trips occurred, the Judicial Conference of the United States has also now effectively and rightly recognized moving forward that not disclosing this kind of travel is ethically dubious. That is also important to emphasize.
Given this recognition and the ethics update, Thomas will surely commit without equivocation to following those new rules, right? Astoundingly, not quite.
“Early in my tenure at the court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable,” Thomas said. “I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”
“And, it is, of course, my intent to follow this guidance in the future,” Thomas added in his statement.
The words’ “endeavored,” “sought” and “intent” are doing a lot of work in that statement.
It’s not good when a judge sounds more like a defense attorney. When it comes to a Supreme Court justice or any other public official following ethics rules, there should be no try. They should just do it, and be able to commit to following the rules without qualification. If there is any doubt, they should err on the side of overcompliance rather than sliding by on a technicality. Being a Supreme Court iustice comes with a supreme responsibility to avoid conflicts of interest or even the appearance of a conflict.
The wiggle room that Thomas has left for himself in that statement is subtle yet alarming, and raises further questions about accountability and enforcement. The news surrounding Thomas got even worse Thursday, when ProPublica additionally reported that a company owned by the same GOP mega donor, Crow, also bought property from Thomas, including the house where Thomas’ mother continued to live. Thomas did not disclose the sale. Multiple legal experts told ProPublica that this appears to be a violation of a federal disclosure law.
It generally doesn’t work well when people or institutions are left to hold themselves accountable. Look at the way Congress has imposed weak and hard-to-enforce guardrails on its members’ own ability to trade stocks. Supreme Court Chief Justice John Roberts has bristled at the idea of Congress stepping in to strengthen judicial branch ethical requirements rather than the judiciary handling it, even after the 2021 revelation that 131 federal judges failed to recuse themselves in 685 cases over a seven year period that involved companies in which they or members of their family owned stock. Roberts has even, in the past, balked at the notion that requirements Congress has placed on other federal judges apply evenly to the Supreme Court.
If Roberts and the Supreme Court continue to fail to provide clarity about what rules apply to them, and demonstrate an ability to follow those rules, then it will fall to Congress to hold them accountable.
“It is well past time for the Supreme Court to align with the rest of government in a proper code of ethics enforced by independent investigation and reporting,” A group of 22 Democratic U.S. senators and representatives wrote in a letter to Roberts after the recent revelation about Thomas’ trips.
As we’ve highlighted on issues like congressional stock trading, we’re not convinced that the rest of the federal government has sufficient ethics requirements, either. But these lawmakers’ point about congruence across the government remains an important one.
The recent situation involving Maine Attorney General Aaron Frey also emphasizes this point. Frey has said that his romantic relationship with a subordinate “has not violated any legal rules, office policy or law.” That hinges in part on the fact that, unlike the policy for certain other state government employees, the attorney general’s office harassment policy does not include a provision requiring such a relationship to be disclosed.
Ethics and conduct requirements, as much as possible, should be uniform across branches of government. Maine’s attorney general should be held to the same standards of behavior, if not higher standards, than other state employees. Supreme Court justices should not be exempt from disclosure and conflict of interest requirements placed on other federal judges.
American government, across branches and at various levels, faces a crisis of confidence. Polling routinely shows significant distrust in government institutions. The willingness of many public officials to operate in the gray areas of the rules — when they are supposed to be the people writing, enforcing and adjudicating those rules — is an obvious problem that can only compound public distrust.
The recent reporting about Thomas is just one example of the ethical shortcomings across American institutions that must be addressed to prevent potential conflicts of interest and undue influence, and to help regain public confidence.