How To Police a Court That Won’t Police Itself
Justice Clarence Thomas is increasingly violating the public’s trust with his consistent deceptions and his public conflicts of interest. Worse, he has damaged Americans’ trust in the entire Supreme Court, a pillar of our democracy and the system of checks and balances. There is a problem on the Supreme Court that cannot be ignored; the question is no longer whether action is needed, but which solution to pursue.
At this point, just one-third of Americans have confidence in the Supreme Court — an all-time low since NPR, NewsHour, and the Marist Institute for Public Opinion first started asking respondents. Moreover, 68 percent of all Americans, across party lines, now believe justices should have term limits.
Just a year ago, Justice Thomas himself expressed concern over declining trust in the Supreme Court, complaining, “We can’t be an institution that can be bullied into giving you just the outcomes you want.” And yet there’s no one more responsible in this moment for the plummeting public trust in the Supreme Court than he is. If Justice Thomas truly believed reviving trust in the Court’s impartiality and integrity was important, he’d resign.
Justice Thomas consistently refused to disclose spousal income and conflicts until 2011, stoking public distrust even back then. When he finally amended 13 years of reports, he did so only in a vague and incomplete fashion despite the fact that his wife, lobbyist Ginni Thomas, earns a considerable income from parties with interests before the court. Lest there be any confusion about just how extreme her views are, recall her attempt to persuade former President Donald Trump not to concede the 2020 election amid the January 6 assault on the Capitol .
That’s bad enough. But, as it turns out, there’s more — a lot more. Over the past 20 years Justice Thomas has accepted millions of dollars in gifts, often in the form of private travel, from a far-right billionaire and major political donor, Harlan Crow. Justice Thomas failed to include those gifts and others — like a $19,000 bible — in disclosures mandated by the Ethics in Government Act. Justice Thomas even sold property to Crow, including the home in which his mother lives, and failed to disclose that, too. Then there’s the fact that Crow gave Ginni Thomas $500,000 to found Tea Party group Liberty Central, cementing her status as a far-right political star.
A poll conducted from April 8 through 11 found that more than two-thirds of Americans had already learned of Justice Thomas’s trips footed by Crow. Even then, before the full details emerged, a strong majority (58 percent) of Americans asked disapproved of his accepting luxury trips without disclosing them — including 42 percent who “strongly disapproved.”
A Supreme Court justice has resigned over less — just 54 years ago. Justice Abe Fortas was criticized for agreeing to let a former law partner pay for a portrait of Fortas intended for Yale Law. He also accepted payment from American University for teaching a seminar, not knowing that the funds came from former clients and partners. In addition, although comparable to commitments his colleagues made, Fortas was taking a retainer to advise a non-profit foundation.
Fortas’s detractors included the late, ignoble Senator Strom Thurmond, who argued that “the contributors’ substantial business interests… might well embroil them in litigation before the Court” and place Justice Fortas “in a difficult position.” Justice Fortas credibly denied wrongdoing but chose the integrity of the institution over perceptions of his own. He heeded the Supreme norm, put succinctly by Justice Potter Stewart: “If you think it’s right to resign, you resign.”
Justice Thomas should follow Justice Fortas’s example. If he truly cared about Americans’ faith in the judiciary and avoiding the appearance of impropriety — a maxim even law clerks know to abide by — he would resign. Every day that he refuses to do so compounds the damage he’s already inflicted on the Court.
If he doesn’t step down, Justice Thomas could force legislators to step up — and not just to make the Court come up with its own ethics code. Congress holds the power of impeachment, the remedy for misconduct by officials of all three branches. There’s precedent for the impeachment of a Supreme Court justice under familiar circumstances. In 1804, the House of Representatives impeached Justice Samuel Chase for “[t]ending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering parti[s]an.” Put simply, Chase was impeached for “continually promoting his political agenda on the bench.”
It would have been difficult to imagine the extremes of the Roberts Court’s rejection of ethical norms — and even the law — 40 years ago, never mind 240-plus years ago. Impeachment is the mechanism the Framers built into the Constitution in recognition of the futility of attempting to imagine every possible threat to the integrity of our democratic institutions. Impeachment’s inclusion was also an elegant structural solution to ensure that the Constitution’s most fundamental protections, the system of checks and balances critical to the separation of powers arrangement, would endure over time — ready to deploy against whatever threats to democracy the future might hold.
All of this is to say that when a public official’s actions jeopardize the integrity of our Constitution and democracy in the way Justice Thomas’s have and do, Congress made criminal prosecution a possibility but the Constitution made impeachment a responsibility. Again, far from an anomaly, impeachment of a judge was the intended remedy for misconduct. Two of the first three public officials to be impeached in the United States were jurists.
Although Justice Chase’s impeachment did not result in his removal, later impeachment trials succeeded in holding judges fully accountable. Another federal judge, Halsted Ritter, was convicted and removed from office under an article of impeachment in 1936 for “bring[ing] his court into scandal and disrepute, to the prejudice of said court and public confidence in the administration of justice.” These concerns are just as relevant today than they were then, if not moreso.
By failing to self-regulate, Chief Justice Roberts and his conservative ilk have taken advantage of the trust the Framers and later Congress placed in the Supreme Court. Given the nature of the ongoing revelations proving Justice Thomas has rejected the most fundamental elements of legal ethics, it’s time to draw a bright line: Thomas has gone too far. Justice Clarence Thomas should, to protect our democracy and his own legacy, resign.
Rebecca Buckwalter-Poza is the Aron Senior Justice Counsel at Alliance for Justice.