Neil Gorsuch has a disclosure problem, too

Maybe Supreme Court justices are just really bad at paperwork

Remember a couple weeks ago when we learned about Clarence Thomas’s undisclosed financial relationship with Republican megadonor and Gardener of Evil Harlan Crow? Sure you do. Do you remember what Thomas’s defense was? Thomas said that early in his tenure on the Court he “sought guidance from my colleagues” and was told he didn’t have to disclose such transactions. That was transparent nonsense, but it also made me wonder: Did Thomas pay that convenient advice forward?

So anyway, Politico reported today that nine days after Neil Gorsuch was confirmed to the Supreme Court he made between a quarter of a million and a half million dollars on the previously-undisclosed sale of a 40-acre property to the head of a law firm that has been involved in at least 22 cases before the Court during Gorsuch’s tenure.

Huh!

The firm in question, Greenberg Traurig, has a pretty good record in those cases, according to Politico: “In the 12 cases where Gorsuch’s opinion is recorded, he sided with Greenberg Traurig clients eight times and against them four times.” Coincidence? It certainly might be. But it would be easier to be confident of that if Gorsuch hadn’t kept the sale secret.

As Slate’s Mark Joseph Stern has noted, Gorsuch has disclosed far less consequential financial matters:

And that’s all we can do, for now — wonder. Gorsuch isn’t talking.¹ Maybe his disclosure-adverse colleague Justice Thomas gave him some dubious advice. Maybe he was trying to hide something. Maybe he just forgot.

Politico notes that Gorsuch’s undisclosed real estate transaction might be permissible under shamefully permissive Supreme Court ethics rules:

Such a sale would raise ethical problems for officials serving in many other branches of government, but the Supreme Court sets its own rules. It has largely left justices to make their own decisions about when and how to report outside gifts and income.

At risk of picking nits, it’s important to remember that ethics and ethics rules are not the same thing. Gorsuch’s failure to disclose his sale of real estate to the head of a litigation practice involved in dozens of cases argued before Gorsuch is unethical regardless of whether it is or is not technically prohibited by the grossly inadequate ethics rules the Supreme Court has set for itself.

Politico notes a difference between the Gorsuch real estate sale and Thomas’s financial relationship with Harlan Crow:

[Greenberg Traurig’s Brian] Duffy, who in addition to serving as CEO is chief of Greenberg’s entire 600-lawyer litigation department, said he has never personally argued cases before Gorsuch or met the justice socially.

“I’ve never spoken to him,” Duffy said. “I’ve never met him.”

[…]

Unlike Crow, who bought properties from Thomas, Duffy says he is neither a friend nor a confidant of Gorsuch. But he is one of the nation’s most powerful attorneys.

[…]

Duffy, who described himself as an avid fly fisher, said he’d been looking for the right property for his family for many years. Duffy said he did not know Gorsuch was one of the owners when he made his first offer.

Remember, Clarence Thomas’s defense of his financial relationship with Harlan Crow is that they’re good friends, and so therefore² Crow’s generosity towards him is understandable and completely harmless.

Obviously it can’t be the case that Thomas’s undisclosed financial transactions are innocent because he’s buddies with his benefactor and also Gorsuch’s undisclosed financial transaction is innocent because he doesn’t even know his benefactor. The “everything is fine, the Supreme Court doesn’t need reform” crowd is going to have to pick a defense.³

1. Then again, reporters don’t have subpoena power. Congress does — and it sure seems like it’s time to use it.

2. According to Thomas. I am unconvinced!

3. Neither is likely to be compelling, but that’s their problem, not mine.