clarence thomas

What Conservatives Can’t Say About Clarence Thomas

Clarence Thomas. Photo: Eric Lee/Bloomberg via Getty Images

We all should have friends like Clarence Thomas’s. In recent weeks, we’ve learned that the Supreme Court justice’s “dear friend,” real-estate billionaire and GOP megadonor Harlan Crow, has:

(1) Treated Thomas to annual vacations so ritzy, their market value sometimes exceeds $500,000.

(2) Bought Thomas’s mother’s home from him, made $36,000 worth of improvements to the residence, then let her live there rent-free. He also purchased the house immediately next door to Thomas’s mother’s place, which “had been known for parties and noise,” and then had the decrepit structure torn down. Crow also bought two other lots on the street off of Thomas, and his investments into the block near-singlehandedly gentrified the blighted area.

(3) Built a seven-foot-tall, 1,800-pound statue of Thomas’s beloved eighth-grade teacher.

(4) Gave $500,000 to a nonprofit organization that employed Thomas’s wife.

(5) And paid for Thomas’s grandnephew to attend private schools that cost roughly $50,000 a year.

The Supreme Court justice’s old pal, conservative judicial activist Leonard Leo, meanwhile, has discreetly funneled tens of thousands of dollars to Thomas’s wife. In 2012, Leo told the GOP pollster Kellyanne Conway to bill his nonprofit, the Judicial Education Project, and “give” Ginni Thomas “another $25k” from the organization, specifying that the paperwork should have “no mention of Ginni, of course,” according to documents obtained by the Washington Post.

While lovely for Justice Thomas, this largesse is less than ideal for the Supreme Court’s public image. By all appearances, Thomas flagrantly violated ethics laws by failing to disclose myriad, exorbitant gifts from Crow. And Leo’s order to “give” another cash infusion to Ginni Thomas in 2012 may be an even more egregious breach of decorum, if not law. Whereas Crow never had personal business before the Supreme Court, the Judicial Education Project’s payment to Thomas’s wife came shortly before the court ruled in Shelby County v. Holder, in which the nonprofit submitted a brief challenging the Voting Rights Act. Thomas subsequently ruled as the JEP had advised.

All this has led to a lot of rather silly discourse. On the one hand, conservatives feel compelled to pretend that there is nothing wrong with a Supreme Court justice accepting hundreds of thousands of dollars in gifts from a partisan donor or his wife taking tens of thousands from groups with business before his court. Even more risibly, they’ve been forced to carry on promoting the fiction that the Roberts Court is committed to neutrally interpreting the Constitution amid outlandish displays of its justices’ partisan loyalties.

On the other hand, many liberals find ourselves arguing as though we are principally interested in seeing a more ethically scrupulous Supreme Court rather than a less reactionary one.

The (laughable) case for Clarence Thomas’s pristine ethical conduct.

Thomas’s legion of conservative apologists have an unenviable task. In a world where low-level civil servants get nervous about letting friends buy them lunch, it is not easy to explain why it is totally fine for a man entrusted with enormous, democratically unaccountable power to accept hundreds of thousands of dollars’ worth of gifts from partisan political activists, let alone fail to disclose them.

The best that the right’s finest minds have come up with goes something like this: Crow and Thomas have been close, personal friends since 1996. Their vacations reflect the combination of their mutual affection and Crow’s enormous wealth; how could a billionaire heir ask a Black man born into poverty to pay for a room on his superyacht? Perhaps Thomas should have disclosed these gifts. But ethics rules stipulate that justices don’t need to disclose the receipt of their friends’ “hospitality.” Sure, it was recently clarified that “hospitality” refers solely to food and board provided in a friend’s personal home, not transport on private planes or yachts owned by their companies. And sure, many judges say this was obvious to them even before the recent clarification. But we’re all entitled to an honest mistake every now and then.

As for Thomas’s mother’s house: Crow simply believed that the childhood home of America’s second Black Supreme Court justice warrants historical preservation. Do progressives now think it is a crime to care about African American history?

Purchasing the property — at market value — enabled Crow to renovate the structure so that it will be ready for conversion into a museum upon the death of Thomas’s mother. Until then, he has no intention of evicting a 94-year-old woman from her home. Perhaps Thomas should have disclosed the transaction. But he had made so many investments into the home’s upkeep that he actually took a capital loss on the sale and therefore believed it was not reportable.

As for the grandnephew’s tuition, since when do liberals oppose giving young Black men a quality education? Maybe Thomas should have disclosed the tuition payments, since they did effectively save him upwards of $100,000. But really, those were gifts to the grandnephew, not to him.

Finally, we all know that Clarence Thomas and Ginni Thomas have totally separate careers, and are not at all interested in each other’s activities or views. Surely a husband and wife brought together in part by their shared enthusiasm for conservative politics would never, like, discuss conservative causes that would soon be debated before the Supreme Court. So there is no reason to think that giving money to Ginni Thomas could plausibly influence Clarence Thomas’s views. Leo merely wished to purchase Ginni’s services as a political activist. He only asked to keep her name out of the paperwork because he believed that liberals would jump at any opportunity to spin a conspiracy theory about the Thomases’ corruption. And progressives have just proved him right!

In other words, conservative pundits have served up a dozen different flavors of weak tea. The claim that none of these payments actually influenced Thomas’s jurisprudence seems plausible. Thomas was a reactionary long before he met Harlan Crow. It is possible that Crow’s largesse was motivated by a desire to insure against the risk of Thomas converting to liberalism à la David Souter. But it is also possible that Crow might genuinely enjoy Thomas’s company. Indeed, it is possible to have a thoroughly uncharitable view of Crow’s motivations and still believe that his generosity was motivated by personal affection. For example, a man who derives his wealth from something as arbitrary as inheritance might reassure anxieties about his own intellectual mediocrity by counting a Supreme Court justice as one of his personal friends. Similarly, a white conservative billionaire might find great validation in hearing his points of view affirmed by a Black man who grew up poor.

Regardless, the idea that Thomas’s behavior is not grotesquely unbefitting someone with his power and responsibilities is insane. If you are going to claim the authority to impose your interpretation of the Constitution onto the polity, you cannot accept hundreds of thousands of dollars of gifts from political partisans and then hide them from the public!

Sensing the weakness of this position, most conservative pundits have declined to defend Thomas’s behavior so much as impugn the motivations of his liberal critics. “The latest attacks on Justice Thomas have nothing to do with ethics,” former Trump administration official Mark Paoletta wrote in the National Review. “Instead, the attacks are about undermining the Supreme Court now that it no longer acts as a super-legislature for implementing the Left’s progressive policies.”

National Review’s Dan McLaughlin expressed similar sentiments, tweeting, “We all know none of this is actually about ethics. And that’s why the people beating the drums on this stuff — including supposedly nonpartisan media outlets — persistently fail to give comparable coverage to benefits, non-recusals, & financial misreports by the liberal justices.”

The idea that other justices have secured gifts as lucrative as Thomas’s — and the media is simply failing to spotlight them — is unsubstantiated and, given the extremity of Thomas’s behavior, highly improbable. But the suggestion that liberals are more interested in using Thomas’s ethical violations to erode the Supreme Court’s legitimacy than they are in reforming that institution’s ethics rules is plausibly true. Or, at least, in my view, liberals should be more interested in doing the former.

For progressives, a corrupt far-right justice might be preferable to an ethically unimpeachable one.

As a general matter, flagrant government corruption is bad for the progressive project. If people view the state as full of self-dealing parasites, it will be much harder to persuade them to accept higher taxes in exchange for more social services and public investments. And insulating democratic politics from the corrosive influence of class inequality requires, among other things, ethical norms that deter open bribery.

It is also genuinely offensive for someone with Clarence Thomas’s level of power to evince such contempt for public concerns about corruption. So I don’t think liberal outrage over his actions is insincere.

That said, if progressives have an interest in preserving public confidence in the integrity of the federal government writ large, we have no such interest with respect to the current Supreme Court. Surely, the primary problem with the Roberts Court is not that its reactionaries occasionally profit off their power. Rather, it is that the court’s conservative majority (1) denies rights that progressives deem inviolable, and, in other domains, (2) circumscribes popular sovereignty in deference to a facially implausible interpretative doctrine that just so happens to almost invariably yield substantive outcomes favorable to the American right (which, uncoincidentally, cultivated and exhaustively vetted every single member of that majority).

This has led the Roberts Court to, among other things, repeal the right to an abortion, gut the Voting Rights Act, bar restrictions on corporate spending in American elections, veto Arizonans’ attempt to limit the influence of such spending by providing candidates with public funds, legalize most forms of political bribery, restrict the capacity of consumers and workers to sue corporations that abuse them, bar municipalities from outlawing the public carrying of firearms, undermine the capacity of public-sector unions to finance themselves, limit the Environmental Protection Agency’s capacity to regulate carbon emissions, and uphold the constitutionality of partisan gerrymandering.

The Court also came within one vote of nullifying the Affordable Care Act and is on the cusp of radically reducing the policy-making power of federal agencies.

I don’t think any progressive can credibly claim that we would respect the legitimacy of a court that ruled this way if only its justices meticulously reported all of their free private-jet rides or even forswore all gifts that would confer the appearance of corruption.

Nor is it plausible that gifts like Harlan Crow’s are the reason why the Roberts Court has undermined myriad causes that liberals care about. There are tens of millions of conservative true believers in the United States. If right-wing billionaires endow institutions dedicated to shepherding young reactionaries through law schools, clerkships, and Senate confirmation hearings, they will get people who genuinely believe in the cause onto the Supreme Court.

So: Given that the Roberts Court is going to be an obstacle to social progress either way, do liberals actually want its conservative justices to uphold the highest of personal ethical standards?

Perhaps the most commonly cited harm of Thomas’s actions is that, in the Washington Post’s words, they “fail to protect public confidence in the independence of the courts.” Yet public confidence in the “independence” of a reactionary and power-hungry court surely is not desirable from a progressive point of view.

To the extent that there is any brake on the Roberts Court’s ambitions, it is the majority’s concern for safeguarding perceptions of its legitimacy. The Supreme Court commands no army. And Congress has the authority to add justices at will. Should the Court’s exercise of power come to seem illegitimate to a sufficiently broad portion of the public, elected officials may feel comfortable nullifying its decisions, or a unified Democratic government might find the will to eliminate the conservative majority through dilution. So although the justices are insulated from direct democratic accountability, they must still pay some mind to the popular mood. The more fragile their perceived legitimacy, the more reluctant they may be to put conservative dogma above majority opinion.

It is therefore in the interest of the progressive movement to undermine the Court’s legitimacy. When conservative justices let GOP megadonors give them yacht rides and renovate their mothers’ houses — while allowing right-wing activists to funnel tens of thousands of dollars to their wives — they make liberals’ task easier.

So it makes sense for progressives to publicize Thomas’s obscene indulgences. But I think it’s true that the end goal of doing so isn’t to secure ethics reforms that will render the Supreme Court less vulnerable to perceptions of corruption. The point is (or at least, should be) to promote the perception of judicial corruption.

There are, of course, hazards to the delegitimization of the Supreme Court. Even with its current partisan composition, the high court still constrains some extraconstitutional attacks on basic rights. But there are plenty of democracies that give the judiciary little scope for judicial review and get by just fine. If it is not possible to redesign the Court so as to render it more credibly independent from our nation’s polarized politics, then weakening its authority (and thus, judicial review) seems preferable to acquiescing to right-wing minority rule. From my perspective, therefore, a perfectly straitlaced and ethically unimpeachable far-right jurist is not preferable to a garishly venal one.

If conservatives are right that (at least some) liberals are not motivated by a concern for the Supreme Court’s ethics so much as contempt for its politics, they can’t help but act in bad faith themselves when making that argument.

Precisely because what’s at stake is the perceived legitimacy and independence of a partisan Supreme Court majority, conservatives can’t say:

The idea that progressives are shocked and appalled by the revelation that conservative activists and donors enjoy special access to Justice Thomas is absurd! Of course Republican bankrollers and movement leaders routinely enjoy private audiences with Thomas — Clarence Thomas is himself a conservative activist! He wouldn’t be on the Supreme Court if he weren’t!

You can’t credibly argue that Harlan Crow’s gifts have done more to shape the Roberts Court’s jurisprudence than the right-wing legal society that groomed many of its current members. Progressives aren’t opposed to a few illicit gifts; they’re opposed to the entire conservative judicial project. Our movement watched the Warren Court advance liberal goals that Democrats couldn’t or wouldn’t through legislation, and we decided to emulate it. We figured out how to engineer a Supreme Court majority and use it to advance substantive goals too unpopular to move through democratic politics. We beat the libs at their own game. And now they’re being sore losers. For at least a generation, the Supreme Court is going to be a vehicle for the raw exercise of right-wing power. And the left can’t stand it!

Instead, commentators like Paoletta write that the left wants the Supreme Court to “act as a super-legislature” for its priorities, while Thomas and his colleagues merely wish to impartially issue “legal opinions that are faithful to the Constitution.”

Of course, this is a risible lie for anyone with eyes to see it. And thanks to Clarence Thomas’s supreme venality, the number of Americans with such eyes is likely growing.