The journalists at ProPublica are proud of their scoop about Justice Clarence Thomas accepting scads of luxury gifts over the years from a billionaire pal, Harlan Crow. Many who never liked Thomas’ jurisprudence are piling on and declaring a four-alarm fire. Writing in The American Prospect, Max Moran intones that Thomas has “broken the law, knowingly and repeatedly, for two decades” and thus must face impeachment and removal from the bench. A representative of Accountable.US told the Guardian that “this is an unprecedented story of corruption at the highest levels, and those involved must be held accountable.”
Court watcher Dahlia Lithwick and her Slate colleague Mark Joseph Stern argue that Justice Thomas violated the law “and it isn’t particularly close,” while the always measured and sober Rep. Alexandria Ocasio-Cortez called for impeachment to save the reputation of the Court, which she asserts has become known for “rank corruption, erosion of democracy and the stripping of human rights.”
On the other side, those who approve of Thomas’ rulings, like The Wall Street Journal editorial board, mock the ProPublica reporting as so much argle-bargle (to borrow a favorite phrase of the late Justice Antonin Scalia). In an editorial headlined “The Smearing of Clarence Thomas,” the Journal opines that “It’s all ugly politics, but the left is furious it lost control of the Court, and it wants it back by whatever means possible.”
If your guy does something, it’s unprecedented corruption. If my guy does it, it’s a trivial lapse. See: Sex scandals of Bill Clinton and Donald Trump.
At the risk of “both sides-ing” this story, the truth is probably in between. The old ethics rules (recently strengthened) were lax. While justices were required to report any gift worth more than $415, there was an exception for gifts that could be characterized as “personal hospitality.” This, Stephen Gillers, a professor emeritus at the New York University School of Law, argues, invited “circumvention.”
Circumvention was exactly what Thomas did. He took advantage of imprecise language permitting justices to accept “personal hospitality” without reporting it. Shielded by that loophole, he accepted and did not disclose 20 years’ worth of extraordinarily lavish gifts including a nine-day cruise to Indonesia that included flying on Crow’s private jet there and back, the Bible once owned by Frederick Douglass said to be worth $19,000, a yearly summer stay at Crow’s private resort in the Adirondacks, a yacht cruise in New Zealand, and use of the private jet for trips to Dallas and other locations. Additionally, Crow contributed half a million dollars to Ginni Thomas’ tea party start-up, Liberty Central, from which she took a six-figure salary.
Why didn’t this give Thomas the willies? Most of us don’t know billionaires, but we’ve all been in situations where we reject money or help because we don’t want to be beholden to someone or, worse, compromised. All of that luxury – the private jets, the yachts, the private resort with artificial waterfalls and top-tier chefs – it can turn your head.
The reason Crow desires a friendship with Clarence Thomas is not principally for his hearty laugh or his storytelling. It’s because he’s a justice on the Supreme Court who rules in ways Crow finds congenial. Over time, all of that largesse can be a kind of soft coercion. If Thomas were ever tempted to stray from the doctrinaire views the two share, would the justice hesitate, if only unconsciously, contemplating the risk that he might lose access to the Bombardier Global 5000 and the private fishing guide?
Thomas knows this is a bad look. Normally loath to comment on negative news coverage, he took the rare step of issuing a statement: “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.”
He is sensitive about being seen enjoying the luxuries of the leisure class because he has crafted a very different public image. In a documentary about his life (paid for by Crow), he spoke of his favorite way to vacation – driving an RV around America. “I don’t have any problem with going to Europe, but I prefer the United States, and I prefer seeing the regular parts of the United States. I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it. I come from regular stock, and I prefer that – I prefer being around that.”
On reporting, Thomas followed the letter of the law, even if you find his interpretation strained. But he failed to live out the ideal that justices should avoid not just impropriety, but the appearance of impropriety. This hurts his reputation, but also the standing of the Court at a time when trust in all institutions is sinking. It’s not a crisis, but it’s not good.
Mona Charen is policy editor of The Bulwark and host of the “Beg to Differ” podcast.