The constitutional showdown we need

The Clarence Thomas corruption news keeps coming. What can Democrats do about it?

ProPublica is out this week with the latest exposé on Clarence Thomas’ mockery of basic judicial ethics. The deeply reported story details how Republican megadonor Harlan Crow has been secretly financing Thomas’ jet-setting lifestyle and how Thomas has illegally concealed Crow’s patronage by omitting it from his financial disclosures.

You should read the whole story, which is a masterpiece in the genre of news that is both shocking and unsurprising, but here’s the crux:

For more than two decades, Thomas has accepted luxury trips virtually every year from the Dallas businessman without disclosing them, documents and interviews show. A public servant who has a salary of $285,000, he has vacationed on Crow’s superyacht around the globe. He flies on Crow’s Bombardier Global 5000 jet. He has gone with Crow to the Bohemian Grove, the exclusive California all-male retreat, and to Crow’s sprawling ranch in East Texas. And Thomas typically spends about a week every summer at Crow’s private resort in the Adirondacks.

The extent and frequency of Crow’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.

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Through his largesse, Crow has gained a unique form of access, spending days in private with one of the most powerful people in the country. By accepting the trips, Thomas has broken long-standing norms for judges’ conduct, ethics experts and four current or retired federal judges said.

As we and others have frequently pointed out, Supreme Court justices are the only federal judges who are not subject to the Code of Conduct for United States Judges. We should fix that. But even in absence of a code of conduct, the justices are responsible for behaving ethically and — though the current Republican justices appear committed to testing this principle — following the law just like everyone else. Here’s more from ProPublica:

These trips appeared nowhere on Thomas’ financial disclosures. His failure to report the flights appears to violate a law passed after Watergate that requires justices, judges, members of Congress and federal officials to disclose most gifts, two ethics law experts said. He also should have disclosed his trips on the yacht, these experts said.

As thorough and well-reported as this story is, it raises as many questions as it answers. Who else was on these trips? (We know right-wing court manipulator Leonard Leo was among the guests.) Did they discuss specific cases? How many of Crow’s pet interests have had business in front of the Court while Thomas was living large on his dime?

Today, Thomas responded to the report, claiming that he had “sought guidance” from colleagues about the disclosure laws and didn’t believe he needed to report these gifts because they were from “close personal” friends. Which, first of all, as our colleague Sarah Lipton-Lubet points out, might be believable coming from a first-year Hill aide but not from a Supreme Court Justice. But more importantly, only underscores the many questions that remain, as Thomas admitted his friendship with the Crows began after he joined the Court.

Can anyone do anything about Clarence Thomas?

So: there will certainly be additional turns to this story, but for today, we want to focus on one specific question: Can anyone do anything about this?

Yes. Yes they can. 

Congress is a co-equal branch of government with the power to oversee the Court’s dealings just as they routinely do for the executive branch.

Rep. Alexandria Ocasio-Cortez has called for Thomas’s impeachment, saying, “This degree of corruption is shocking - almost cartoonish.” While she’s plainly right, impeachment remains unlikely, at least for now.

But that doesn’t mean Congress is without recourse. Democrats control the Senate, and Judiciary Committee Chair Dick Durbin said the committee “will act” in response to this report. The question, then, is what form should the their action take?

As Greg Sargent asks in a smart Washington Post column, “Is there any hope for accountability — or, barring that, reforms that could place limits on such apparent misconduct and restore public faith in the high court?”

Here are three things Congress can do:

Supreme Court ethics rules

First, Congress should quickly pass legislation that holds Supreme Court justices to the highest standards other federal officials are required to follow. For example, members of Congress are prohibited from accepting gifts worth more than $50. The same should apply to the justices.

A 1/6-style investigation and hearings

Second, while new ethics rules move through the legislative process, Senate Democrats should use their bully pulpit to compel a public conversation about the Court’s crumbling integrity. As former White House Deputy Press Secretary Eric Schultz pointed out, the news media intensely cover the Supreme Court’s decisions but rarely devote the same attention to the Court or the justices themselves. So Democrats have to force the issue.

We’ve seen members of Congress promise to look into previous ethics lapses by Thomas, Justice Samuel Alito, and others. But we have never seen a January 6 Committee-style investigation and hearings into the Court’s corruption. And make no mistake: a stolen Supreme Court conspiring with billionaires to impose right-wing minority rule is every bit the threat to our democracy that the insurrection at the Capitol was.

The Senate Judiciary Committee should launch a serious investigation combining behind-the-scenes fact-gathering with public hearings to uncover and publicize Thomas’s flagrantly unethical behavior (and that of his colleagues, where it exists).

They should subpoena Harlan Crow and others such as Leo who joined Thomas on the all-expenses-paid junkets. They should demand records relating to any gifts provided to justices — including requiring that the Justices themselves disclose gifts received in recent years. 

Subpoena Thomas

A showdown between the Senate and a Supreme Court justice over whether our most powerful judges have to follow the law would drive tremendous coverage and draw vital attention to Thomas’ behavior and the Court’s degradation.

And, importantly, the Committee should subpoena the justices themselves. Clarence Thomas should be required to answer for his unethical behavior under oath, on television in front of the American people — just like other government officials.

As law professor Stephen Vladeck told Sargent, Congress has largely abdicated its responsibility to conduct meaningful oversight of the Supreme Court — and “The result has been a court that isn’t looking over its shoulder — and justices who don’t seem to see any reason why this kind of behavior raises eyebrows.”

Would Thomas honor a subpoena and submit to questioning? Maybe not. He clearly doesn’t feel bound himself by the laws he enforces on the nation. But that’s the point. American political media loves conflict. A showdown between the Senate and a Supreme Court justice over whether the rules apply to our powerful judges would drive tremendous coverage and draw vital attention to Thomas’ behavior and the Court’s degradation.

Some institutionalists would surely warn of a constitutional crisis, but let’s be clear: this Court and behavior like Thomas’ are a constitutional crisis. It serves nobody except for Thomas and his cronies for that crisis to continue playing out quietly out of public view.