THE ETHICAL SCANDALS OF SUPREME COURT JUSTICE THOMAS

The relationship between Supreme Court Justice Thomas and right-wing billionaire Harlan Crow is a major ethical scandal. Justice Thomas’s wife’s activities also present significant conflicts of interest. The fact that Justice Thomas has failed to report relevant and required information about these potential conflicts not only deepens the scandal but in some cases is also a clear violation of federal law. The failure of Thomas to recuse himself from Supreme Court cases where these issues are relevant makes this a truly unbelievable breach of judicial ethics and calls into question many of the 5 – 4 Court decisions whose outcome would have been different if Thomas had recused himself. All of this has severely damaged the credibility of the Supreme Court. (See this previous post for an overview of ethical issues with Supreme Court justices and the damage that’s been done to the Court.)

(Note: If you find my posts too much to read on occasion, please just read the bolded portions. They present the key points I’m making.)

There are numerous scandalous elements to the relationship between right-wing billionaire Harlan Crow and Justice Thomas, which they claim are only reflections of their friendship. It’s relevant to note that they only became “friends” in 1996 AFTER Thomas joined the Supreme Court in 1991. This certainly makes one wonder if Crow’s interest in this friendship was about more than friendship. The relationship has included: [1] [2]

·         Free vacations in Indonesia, the Caribbean, and the Baltics and Russia for Thomas and his family, each of which is estimated to be worth at least $500,000. This is well in excess of the requirement to report gifts of over $415. The vacations don’t qualify for the exemption from reporting for personal hospitality because they weren’t at Crow’s personal home and, therefore, federal rules require them to be disclosed.

·         Numerous trips on Crow’s private jet over the last 25 years are clearly required to be reported on Thomas’s mandatory annual financial disclosure form but have not been.

·         Regular summer vacations at Crow’s Adirondack Mountains resort, which is owned by a corporation not personally by Crow. Therefore, they don’t qualify for the exemption of personal hospitality from required reporting.

·         Crow’s purchases of multiple real estate properties from Thomas and his family for over $100,000, including the home where Thomas’s mother lived rent-free and where renovations were done at Crow’s expense. Thomas did not disclose the purchases, despite federal law requiring officials, including Supreme Court justices, to disclose real estate transactions over $1,000. [3]

·         Crow’s payment of tuition at private high schools for the grandnephew of Justice Thomas who lived with Thomas and his wife for 13 years and for whom Thomas was the legal guardian. The tuition was $25,000 to $30,000 a year, except for one year at a special school where it was $70,000. Crow paid at least $100,000 of this tuition. Thomas did not report the tuition from Crow on his annual financial disclosures, although he did report as a gift $5,000 from another friend that was for the boy’s education.

·         Crow’s gift of $500,000 to a Tea Party organization called Liberty Central founded and run by Thomas’s wife, which paid her a $120,000 salary.

·         Crow’s expenditure of more than $2 million to fund a museum at the site of a cannery where Thomas’s mother worked.

·         Crow’s $150,000 of financing for a Clarence Thomas wing at the Savannah library.

·         Crow’s donation of $105,000 to the Yale Law School for the Justice Thomas Portrait Fund.

·         Crow’s gifts to Thomas of a $19,000 bible owned by Frederick Douglass and of a $15,000 bust of Abraham Lincoln.

Justice Thomas has said, and most reporting on the scandal has echoed, that there’s no ethical issue with Crow’s gifts because he didn’t personally have a case come before the Court. While that’s technically true, his business and political interests certainly have had cases before the Court. Crow inherited a large family real estate business. In 2005, an appeal in a $25 million suit against a Crow company came before the Court. (The Court declined to hear the appeal.) [4] A real estate trade association, the National Multifamily Housing Council (NMHC), which has close links to Crow and his businesses, has filed multiple briefs in Supreme Court cases. NMHC is chaired by the CEO of Crow Holdings, Ken Valach, who took over that position from Crow in 2015. NMHC advocates for over 1,000 large residential rental property owners. Three of Crow’s companies are dues paying members and multiple Crow executives serve on its Board of Directors. It has filed briefs with the Court on cases that would impact Crow’s businesses, such as cases involving rent control, racial discrimination in housing, and the Clean Water Act. [5]

In terms of political interests, Crow is an active member of a network that provides substantial funding to right-wing political candidates, institutions, and legal cases. He has spent millions on efforts to transform the law and the federal judiciary, including the Supreme Court, to reflect his right-wing ideology. The right-wing think tank, the American Enterprise Institute, where Crow is on the Board, has filed three briefs with the Supreme Court. (Furthermore, Thomas’s wife, Ginni, has been a paid employee of the Institute.) In 2003, the Club for Growth, a right-wing, free market advocacy group where Crow serves on the Founders’ Committee, filed a brief with the Court in a campaign finance case.

Thomas’s hobnobbing with Crow has brought him into contact with numerous right-wing activists including Leonard Leo, the leader of the Federalist Society. Leo and the Federalist Society are generally regarded as the architects of the successful effort to turn the Supreme Court into a right-wing juggernaut. [6] Leo uses a network of opaque non-profits to support advocacy for a wide range of right-wing causes, including spending millions to influence Supreme Court cases. For example, at least six groups funded by Leo’s network have filed briefs with the Court on a same-sex marriage discrimination lawsuit. Groups in the network are active in opposing affirmative action, LGBTQ rights, and federal oversight of elections. [7]

Leo has also directed tens of thousands of dollars to Thomas’s wife, Ginni. He instructed a Republican pollster, Kellyanne Conway (who would later be in Trump’s White House), and her company, the Polling Company, to pay Ginni Thomas’s recently formed Liberty Consulting company $100,000 in 2011 and 2012. Specifically, in January 2012, Leo told Conway to bill the Judicial Education Project (JEP), a non-profit organization that Leo advised, “another $25,000” to give to Ginni Thomas. He emphasized that the paperwork should have “No mention of Ginni, of course.” Shortly thereafter, the JEP filed a brief with the Supreme Court for a case on the Voting Rights Act. In a 5 – 4 decision, with Justice Thomas voting with the narrow majority, the Court struck down provisions of the Act that protected minority voters, in accordance with the position of the JEP brief. The JEP has since submitted about ten friend-of-the-court briefs to the Supreme Court and Thomas hasn’t recused himself in any of those cases. [8]

Justice Thomas’s wife, Ginni, is deeply involved in right-wing Republican politics, but this has not led Justice Thomas to recuse himself from cases where this would seem to present a conflict of interest. For example, she was deeply involved in efforts to keep President Trump in office and overturn the results of the 2020 election, including being in touch with people at the White House. Nonetheless, Justice Thomas did not recuse himself from the Supreme Court case deciding whether the House committee investigating the January 6th insurrection could obtain White House records, even though his wife’s communications could have been among those records. By the way, he was the only justice voting that the committee shouldn’t get the records. [9]

By concealing gifts from Crow and potential conflicts of interest from his wife’s activities, Justice Thomas prevented the issue of whether he should recuse himself from being raised as cases were being heard by the Court. He clearly violated judicial ethics by not recusing himself in some of these cases and he clearly violated federal law by not reporting gifts from Crow.

Justice Thomas’s vote was obviously essential in many of the very significant 5 – 4 decisions by the Court. If he should have recused himself in some of these cases, that would have changed their outcomes. One example is the 5 – 4 decision in Shelby County v. Holder, the Voting Rights Act case mentioned earlier. Another example is the 5 – 4 decision in the 2010 Citizens United v. Federal Election Commission case. This decision opened the floodgates for unlimited spending in political campaigns. One result of this decision was that Harlan Crow and his family could now spend much more on campaigns and have much more political influence. Specifically, from 1977 to 2009 the Crow family spent $5 million in total on campaigns or about $160,000 a year. After the Citizens United decision, from 2010 to 2022, the Crows spent over $20 million on campaigns or about $1.6 million a year, roughly ten times as much as they had spent previously. [10]

My next post will share updates on, effects of, and remedies for the ethical scandals of the Supreme Court justices. I apologize for the length of this post (I think it’s the longest one I’ve ever done) but I couldn’t make even an overview of Justice Thomas’s ethical scandals any shorter.

[1]      Blumenthal, P., 4/26/23, “Clarence Thomas said his billionaire friend didn’t come before the Court – but his business interests did,” The Huffington Post (https://www.huffpost.com/entry/clarence-thomas-harlan-crow-business-interests_n_64494a12e4b0d840388c2935)

[2]      Kaplan, J., Elliott, J., & Mierjeski, A., 5/4/23, “Clarence Thomas had a child in private school. Harlan Crow paid the tuition,” ProPublica (https://www.propublica.org/article/clarence-thomas-harlan-crow-private-school-tuition-scotus)

[3]      Conley, J., 4/13/23, “‘He must be impeached’: Clarence Thomas made undisclosed property deal with billionaire megadonor,” Common Dreams (https://www.commondreams.org/news/clarence-thomas-real-estate)

[4]      Tillman, Z., 4/24/23, “Clarence Thomas’s billionaire friend did have business before the Supreme Court,” Bloomberg (https://www.bloomberg.com/news/articles/2023-04-24/clarence-thomas-friend-harlan-crow-had-business-before-the-supreme-court)

[5]      Blumenthal, P., 4/26/23, see above

[6]      Kaplan, J., Elliott, J., & Mierjeski, A., 4/6/23, “Clarence Thomas and the billionaire,” ProPublica (https://www.propublica.org/article/clarence-thomas-scotus-undisclosed-luxury-travel-gifts-crow)

[7]      Kroll, A., Perez, A., & Ramaswami, A., 12/14/23, “Conservative activist poured millions into groups seeking to influence Supreme Court on elections and discrimination,” ProPublica (https://www.propublica.org/article/leonard-leo-scotus-elections-nonprofits-discrimination)

[8]      Brown, E., Boburg, S., & O’Connell, J., 5/4/23, “Judicial activist directed fees to Clarence Thomas’s wife, urged no mention of ‘Ginni’,” The Washington Post

[9]      Levy, P., 5/2/23, “The Dobbs leak didn’t wreck the Supreme Court – the justices’ scandals did,” Mother Jones (https://www.motherjones.com/politics/2023/05/supreme-court-scandals/)

[10]     Stancil, K., 5/2/23, “Thomas’ Citizens United vote enabled billionaire benefactor to boost political power,” Common Dreams (https://www.commondreams.org/news/clarence-thomas-citizens-united-harlan-crow-political-spending)