Associate Supreme Court Justice Clarence Thomas speaks at the Heritage Foundation on October 21, 2021, in Washington, DC.
Clarence Thomas’ tenure on the Supreme Court from the beginning has been riddled with controversy. Consider his hyper-radical views of the Constitution; his rejection of precedent; his years of silence during oral arguments; his penchant to cite himself always and often (in his concurring opinion in Dobbs v. Jackson Women’s Health Center, the abortion case, he cited himself 21 times!) One suspects that his opinions dealing with race convey a sense of bitterness at being seen as a beneficiary of affirmative action and his bitterness at being mistreated at his confirmation hearing when he was accused by a female employee of sexual misconduct and called the proceedings a “High-tech lynching.”
The fact that his wife was involved in communications about subverting the 2020 election and his dissents from every case in which the court rejected Donald Trump’s meritless petitions have not enhanced Justice Thomas’ reputation. Another quality in Justice Thomas’ jurisprudence that I have commented on is his gratuitous cruelty. See “Clarence Thomas’ Cruel and Dishonest Opinion Shouldn’t Be Forgotten,” Law and Crime, July 1, 2019; “Gratuitous Cruelty in Justice Thomas’ Jurisprudence,” New York Law Journal, Aug. 25, 2022.
Currently, the controversy has shifted from Thomas’ jurisprudence to his ethics. It has been reported that Thomas, for many years, received the largesse of billionaire GOP megadonor Harlan Crow, involving numerous international vacations on Crow’s superyacht, flights on his private jet, and stays at his private resort in the Adirondacks.
A 10-day trip to Indonesia in 2019 on Crow’s superyacht would have cost Thomas $500,000. None of Crow’s largesse was reported on Thomas’ annual financial disclosure forms, which every federal employee is required to report. Thomas’ explanation?
“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas wrote. “I have endeavored to follow that counsel throughout my tenure and have always sought to comply with the disclosure guidelines.”
Thomas is incorrect, according to former ethics lawyers for Congress and the White House. Gifts of transportation, such as private jet flights, must be reported under the federal Ethics in Government Act. Thomas implicitly acknowledged as much when he disclosed similar flights in the late 1990s, including one on Crow’s jet in 2014.
Now, in an even more controversial report, it appears that in 2014 Crow purchased a string of properties in a residential area in Savannah, Georgia; a single-story home and two vacant lots down the road. The seller on the deal was Clarence Thomas and his relatives. The transaction marks the first known instance of money flowing from Crow to Thomas.
Crow bought the properties from Thomas for $133,363, according to a state tax document and a deed dated Oct. 15, 2014. Crow, through this purchase, now owned the house where Thomas’ elderly mother was living. Soon after the sale was completed, contractors for Crow began improvements on the house involving tens of thousands of dollars on the two-bedroom, one-bathroom home.
The renovations included a carport, a repaired roof and a new fence and gates, according to city permit records and blueprints.
Federal disclosure law requires justices and other officials to disclose the details of real estate sales over $1,000. Thomas never disclosed his sale of the Savannah properties, which appears to violate the law. The disclosure form Thomas filed that year also had a space to report the buyer’s identity in any private transaction, such as a real estate deal. That space is blank. Given the role Crow played in subsidizing the lifestyle of Thomas and his wife, it is not unreasonable to wonder whether this real estate deal was an effort to put cash in Thomas’ pocket. Thomas’ mother still resides in the home.
Crow said he purchased Thomas’ mother’s house, where Thomas spent part of his childhood, to preserve it for posterity. However, Crow did not explain why he also purchased two vacant lots from Thomas down the street. He claimed that “the other lots were later sold to a vetted builder who was committed to improving the quality of the neighborhood and preserving its historical integrity.” Nor is it entirely clear whether Crow’s intentions have any bearing on Thomas’ legal obligation to disclose the sale.
Curiously, Thomas’ financial disclosure form for that year lists everything in detail, from a “stained glass medallion” he received from Yale to a life insurance policy. But he failed to report his sale to Crow.
Thomas’ obligation to report the real estate deal was clear. He had earlier reported the property as an asset. Selling it was a transaction that necessitated disclosure.
So here are some questions for Thomas: Why did Thomas fail to disclose Crow’s purchase of his mother’s home? Did Thomas or his mother pay Crow for the expensive renovations? If the renovations were a gift, why did Thomas not report them? Why did Thomas fail to disclose the extravagant vacations he took at Crow’s expense? Who were the persons who advised Thomas that he didn’t have to report the multi-year extravagant vacations he received for free from Crow? Why did Thomas never report over $1.6 million his wife received from several Republican-affiliated sources even though federal disclosure law requires listing a spouse’s sources of income?
The Ethics in Government Act requires judges to file annual financial reports and the consequences for failing to comply. In the case of a judge’s failure to comply, the Judicial Conference is required to refer to the Attorney General the name of any individual who has willfully failed to file the required information. A violation can result in criminal penalties.
As of this writing, it’s not clear where the Thomas case is headed. But on one point, there appears to be a consensus: the Supreme Court’s reputation, now at an all-time low, needs an ethics overhaul.
Professor Bennett Gershman is a Professor of Law at the Elisabeth Haub School of Law at Pace University, a former prosecutor in the Manhattan District Attorney’s Office, and a Special Assistant Attorney General in New York State’s Anti-Corruption Office.
This is an opinion piece. The views expressed in this article are those of just the author.
