The entire Supreme Court — all nine justices — released a brief document Tuesday night responding to allegations that the Court’s ethical standards are too lax. The document appears to be the Court’s first response to revelations, first published by ProPublica, that Justice Clarence Thomas frequently takes luxurious vacations funded by billionaire Republican donor Harlan Crow.
It’s the Court’s most robust public statement on its ethical responsibilities in over a decade. But it hardly seems to respond to the Thomas revelations that prompted it.
The document spends far more time discussing other ethical issues, such as the rules governing when a justice can be paid to teach at a university, than it does discussing the more salient question of whether a sitting justice should be accepting expensive gifts from a wealthy political activist. And the Court’s brief discussion of such gifts suggests that its approach needs to be tightened down considerably.
The document is part of Chief Justice John Roberts’s reply to a letter Senate Judiciary Chair Dick Durbin (D) sent to Roberts, inviting him or another justice to testify “regarding the ethical rules that govern the Justices of the Supreme Court and potential reforms to those rules.”
On Tuesday evening, Roberts responded with three documents, including a brief letter declining to testify on the grounds that “testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare” and has historically involved noncontroversial matters.
The most significant document included in Roberts’s response is a three-page “Statement of Ethics Principles and Practices,” which lays out how the justices, who are not bound by the same code of conduct that applies to all other federal judges, approach ethical questions. This document is signed by all nine of the justices, both Democratic and Republican appointees.
The justices’ statement devotes an entire paragraph to paid teaching at universities, and another to unpaid speeches to “an educational institution, a bar group, or a nonprofit group.” It spends two entire paragraphs defending the Court’s approach to calls for a justice to recuse, arguing that “Justices have a duty to sit” in cases where a lower court judge might recuse because another judge cannot substitute for a justice who removes themselves from a case.
By contrast, the statement devotes only a few stray words to the problem at the heart of the Clarence Thomas corruption scandal: justices accepting gifts from individuals who may wish to influence how the Court decides cases. The statement claims that “Justices have followed the financial disclosure requirements and limitations on gifts” established by regulations that apply to other federal judges.
An appendix attached to the statement (this appendix is the third document Roberts provided to Durbin) also quotes a federal law that states that no federal judge may “accept anything of value from a person” who either has business before their court or “whose interests may be substantially affected by the performance or nonperformance” of a judge’s duties.
Beyond these brief mentions of gifts, however, the Court is largely silent on how it approaches lavish gifts from billionaire political donors. And it offers no explanation of how Thomas’s practice of accepting such gifts from Crow can possibly be squared with the law restricting gifts to federal judges.
Thomas drew an arbitrary line to justify his gifts from Harlan Crow; the Court’s response to Durbin provides some insight into why he drew it there
Thomas has accepted expensive gifts from his billionaire friend for a very long time — and this fact has also been known for a very long time. As far back as 2001, for example, Thomas accepted a $19,000 Bible that once belonged to Frederick Douglass from Harlan Crow and his wife Kathy. This and other such gifts from Crow to Thomas were revealed nearly two decades ago, in a 2004 report by the Los Angeles Times.
The justice, for his part, has attempted to defend himself by claiming that this kind of “personal hospitality from close personal friends” is not a problem because Crow “did not have business before the court” — though it turns out that’s not entirely true. According to Bloomberg, Thomas did briefly consider a $25 million copyright dispute involving a company that Crow was a partial owner of in 2005.
Thomas has also accepted gifts from organizations that file amicus briefs in cases where they are not parties. In 2001, for example, he accepted a $15,000 bust of Abraham Lincoln from the American Enterprise Institute, a conservative think tank with close ties to Harlan Crow — Crow currently sits on AEI’s board. Since then, AEI filed briefs in several cases before the Supreme Court, and Thomas did not recuse from those cases.
But, setting aside the question of whether Thomas should have recused from these few cases in which his benefactors filed a brief or had a direct financial interest in the outcome of a case, Thomas’s suggestion that he is untainted so long as he only accepts gifts from groups or individuals who do not “have business before the court” is ridiculous because every single American has a stake in the Supreme Court’s decisions.
The Supreme Court is the most powerful policymaking body in the United States, effectively capable of repealing or rewriting any law. In NFIB v. Sebelius (2012), for example, the Court allowed GOP-controlled states to opt out of the Affordable Care Act’s Medicaid expansion, denying health coverage to millions of Americans who’ve never filed a brief in the Supreme Court. The Court’s decision in West Virginia v. Environmental Protection Agency (2022) arguably impacts everyone on the planet because it drastically curtailed the EPA’s ability to fight climate change. And the Court’s campaign finance decisions, which have largely stripped away barriers to wealthy donors who seek to influence politics, have obvious implications for a billionaire political donor like Crow.
So the idea that it is somehow innocent for a sitting Supreme Court justice to accept expensive gifts from a billionaire with a long history of using his wealth to influence US politics and policy, so long as that billionaire doesn’t actually appear in the Court and isn’t a party to any lawsuit before the Court, is laughable and arbitrary. If the law permitted Crow to lavish similar gifts on the president, or on a member of Congress, it would be obvious that federal law is too lax, because Congress and the president exercise general authority over all matters of US policy. So too does the Supreme Court.
Other policymaking officials generally are bound by much more restrictive rules than the justices apply to themselves. Members of the US House and their staff, for example, must seek formal House Ethics Committee approval before they can accept a gift worth more than $250 from a personal friend. The federal anti-gifting statute imposes special obligations on executive branch officials, who typically may not accept a gift from anyone “conducting activities regulated by” the agency where they are employed.
The Court’s response to Durbin does offer a little bit of insight into how Justice Thomas could possibly think that the arbitrary line he drew to determine when he could accept Crow’s gifts was correct.
As mentioned above, the appendix to the nine justices’ statement on ethics quotes from a federal statute that prohibits federal officers and employees from accepting gifts from anyone “seeking official action from” or “doing business with” that federal employee’s “employing entity.” Read in isolation, this provision could be interpreted to only forbid federal judges from accepting gifts from lawyers or parties with direct business before their court.
But the very next line of the same anti-gifting statute provides that federal officials also may not accept gifts from anyone “whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties.” The justices’ response to Durbin makes no attempt to square this language, which seems to forbid a justice from accepting a gift from anyone at all, with Thomas’s behavior.
The Supreme Court is famously clueless about how corruption works
The Supreme Court’s devil-may-care response to Thomas’s actions, and to Crow’s apparent influence-buying, is not especially surprising given how the Court has spoken about corruption in its own decisions. Indeed, many of those decisions speak of such influence-buying as if it is both a positive good and an essential aspect of democracy.
Consider, for example, the Court’s anti-canonical decision in Citizens United v. FEC (2010), which permitted corporations and unions to spend unlimited sums to influence elections. In reaching that conclusion, the Court spoke of elected officials who are unusually responsive to their donors as pillars of democracy:
Supreme Court justices are obviously different from members of Congress in that they are not elected. But that suggests that justices should be held to a higher standard than elected officials: A corrupt member of Congress can potentially be cast out of office by their voters, while a justice serves for life unless they are successfully impeached.
The justices, however, appear to view influence-buying that targets justices in much the same way they view influence-buying that targets members of Congress. And so the Court’s first response to the recent reporting on Harlan Crow does little to allay concerns that Justice Thomas should not be taking expensive gifts from a politically connected billionaire.