Clarence Thomas (Library of Congress)
Criticism of Clarence Thomas intensified Thursday after an extensive investigation uncovered that the conservative Supreme Court justice and his political activist wife have enjoyed a series of undisclosed trips around the world on a Dallas billionaire Republican donor’s “superyacht” over the past two decades.
Though the ProPublica story did not include a response from the justice or Ginni Thomas, it did cite experts (one a retired Bill Clinton-appointed federal judge and another a CREW lawyer) in support of the position that Thomas “appears to violate a law passed after Watergate that requires justices, judges, members of Congress and federal officials to disclose most gifts” and that he should have disclosed the trips. The story also included a full response from billionaire Harlan Crow, with noticeable language about friendship and “hospitality” repeated throughout [emphasis ours]:
My wife Kathy and I have been friends with Justice Thomas and his wife Ginni since 1996. We are very dear friends. The hospitality we have extended to the Thomas’s over the years is no different from the hospitality we have extended to our many other dear friends. We have been most fortunate to have a great life of many friends and financial success, and we have always placed a priority on spending time with our family and friends. Justice Thomas and Ginni never asked for any of this hospitality. We have never asked about a pending or lower court case, and Justice Thomas has never discussed one, and we have never sought to influence Justice Thomas on any legal or political issue. More generally, I am unaware of any of our friends ever lobbying or seeking to influence Justice Thomas on any case, and I would never invite anyone who I believe had any intention of doing that. These are gatherings of friends. On a number of occasions, we have made contributions to projects celebrating the life and legacy of Justice Thomas, just as we have done with other great leaders and historically significant figures. He and Ginni never asked us to do any of this. We did so because we believe Justice Thomas to be one of the greatest Americans of our time, and we believe it is important to make sure as many people as possible learn about him, remember him, and understand the ideals for which he stands. We will continue to support projects that advance this goal.
The post-Watergate reforms and the enactment of the Ethics in Government Act of 1978 requires justices of the Supreme Court to annually file financial public disclosure reports detailing “sources amounts of income, gifts, and reimbursements.” The law also directs the “Judicial Conference of the United States,” which Chief Justice John Roberts presides over, to “establish a Judicial Ethics Committee,” to “receive such reports of judicial personnel,” and to “ascertain possible violations of conflict of interest laws.”
In 1991, retired Justice William J. Brennan Jr. made headlines for disclosing only after he was out of office that “a dear friend” — Charles E. Smith, a wealthy real estate mogul — paid him $20,000 in cash gifts and forgave more than $120,000 of the jurist’s mortgage.
The Associated Press story also published in the New York Times focused on the code of conduct for federal judges allowing for the receipt of such gifts and loans from close friends, noting that Justice Brennan described his relationship with Smith in those terms when eventually making the disclosure.
“The gifts reflected only the affection and generosity of a dear friend,” Justice Brennan wrote in the disclosure, according to the contemporaneous news report. “Mr. Smith has stated that he made these gifts in recognition of my public service.”
“At no time since I have lived at the condominium, and specifically during any of the years reflected on this report, did Mr. Smith or any of his companies have any matters before the Court or that were affected by Court decisions,” the justice also added, saying the gifts impacted no pending or decided matter.
The U.S. Judicial Conference’s Guide to Judiciary Policy has long included an exception on accepting a gift “from a relative or friend.” The exception says accepting the gift is permissible if it does not impact official actions in matters of interest to the donor or if the gift is given “in connection with a special occasion, such as a wedding, anniversary, or birthday, and the gift is fairly commensurate with the occasion and the relationship.”
There is also an exception if the gift “consists of an invitation and travel expenses, including the cost of transportation, lodging, and meals for the officer or employee and a family member (or other person with whom the officer or employee maintains both a household and an intimate relationship) to attend a bar-related function, an educational activity, or an activity devoted to the improvement of the law, the legal system, or the administration of justice.”
Crow’s statement hewed closely to much of the legalese, describing Justice Thomas and Ginni Thomas as “dear friends” given the kind of personal hospitality extended to any other close friend over a long period of time — and without any attempt to influence or corrupt the judicial process.
Legal ethics scholar and New York University School of Law Professor Stephen Gillers told Law&Crime that Crow’s statement was carefully worded and seemingly designed to reflect knowledge of the current legal landscape on Supreme Court ethics issues.
“After the Judicial Conference of the U.S. amended its gift reporting rules last month in response to efforts by Senators Whitehouse and Graham, some information and maybe all information about the trips ProPublica has reported would have had to have been disclosed by Thomas — eventually. The reporting deadline is May 15 of the year following receipt of the gift,” Gillers explained. “Unlike the Code of Conduct for U.S. Judges, which does not apply to the justices, the gift reporting rules are based on a statute that applies to the justices.”
Ross Garber, a criminal defense attorney, adjunct professor at Tulane Law, and political investigations expert, told Law&Crime of the Thomas case that despite efforts by judiciary-focused Senate Democrats like Sen. Sheldon Whitehouse, D-R.I., “Absent an allegation of violation of criminal laws on bribery, gratuities, and the like (which are absent here), the enforcement of ethics standards for Supreme Court justices have been left to the Court itself.”
“It is unclear whether the gifts at issue here are outside the norms of the Court and what, if any repercussions there will be for any failure to disclose them,” Garber said.
Prof. Gillers said it was clear, however, that Crow’s language around the subject of “personal hospitality” was telling.
“Before the amendments, there was a reporting exemption for ‘personal hospitality.’ Justice Thomas could claim and I think has claimed that so long as an invitation came from a person, not a corporation or business entity, it did not need to be reported regardless of the value of the gift. Last month’s amendments reject this interpretation of ‘personal hospitality’ and significantly narrow the ‘personal hospitality’ exemption,” Gillers told Law&Crime. “Notably, Crow uses the word ‘hospitality’ in the ProPublica piece. So it appears he’s aware of the law here.”
Beyond but related to the discussion of ethics codes, Gillers also pointed to 5 U.S. Code § 7353, the federal statute which deals with gifts to judicial branch officers among others.
“Except as permitted by subsection (b), no Member of Congress or officer or employee of the executive, legislative, or judicial branch shall solicit or accept anything of value from a person […] whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties.”
Under subsection (b), supervising ethics offices — such as the U.S. Judicial Conference — are authorized to “issue rules or regulations implementing the provisions of this section and providing for such reasonable exceptions as may be appropriate.” Gillers pointed out that the revised way the Judicial Conference of the United States Committee on Financial Disclosure defined those “hospitality” rules went into effect as recently as March 14, 2023, following congressional action on supreme transparency.
The conference told Congress it now follows guidance saying the “reporting exemption does not include … gifts paid for by any individual or entity other than the individual providing the hospitality, or for which the individual providing the hospitality receives reimbursement or a tax deduction related to furnishing the hospitality; or gifts extended at a commercial property, e.g., a resort or restaurant”; the conference’s notes also specify that the reporting exemption does not include [emphasis ours] “gifts other than food, lodging or entertainment, such as transportation that substitutes for commercial transportation.”
Gillers emphasized the word “interests” in 5 U.S.C. § 7353(a)(2), the statute which says a judicial officer shall not accept a thing of value from “a person whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties.”
For his part, Crow completely rejected the notion that yacht trips were undertaken with a mind for influencing cases of interest in the highest court in the land. For Gillers, “interests” as it appears in the statute, “surely refers to financial or commercial interests but can also refer to policy or ideological interests.”
“For example, this language would forbid receipt of gifts from a pro-life or pro-choice organization even if they had no financial interest in court matters,” Gillers said.
Senate Democrats led by Sen. Elizabeth Warren, D-Mass., introduced a bill in May 2022 called the Judicial Ethics and Anti-Corruption Act, which proposed amending 5 U.S. Code § 7353 to more directly outlaw the justices’ receipt of travel as a gift. The current language in the statute bars federal employees’ solicitation or acceptance of “anything of value,” but the lawmakers proposed changing that legal term (which appears in the federal bribery statutes, as the Supreme Court well knows) to “a gift” — specifically adding that “the term ‘gift’ means anything of value, including transportation, travel, lodgings and meals, whether provided in-kind, by purchase of a ticket, payment in advance, or reimbursement after the expense has been incurred.'”
The legislation, which also sought to ban federal judges and SCOTUS justices from owning individual stocks and securities, has not advanced any further than the introduction stage.
More recently, judicial advocacy groups such as Fix the Court praised Senate-driven efforts, like the Supreme Court Ethics, Recusal, and Transparency Act, to up disclosure transparency and shore up “ethical guardrails” in 2023.
On Thursday, however, Fix the Court’s executive director Gabe Roth commented that ProPublica’s latest reporting shows the “Supreme Court is the least accountable part of our government, and nothing is going to change without a wholesale, lawmaker-led reimagining of its responsibilities when it comes to basic measures of oversight.”
“It’s clear that the personal hospitality rules the judiciary adopted last month do not go far enough: the Supreme Court and lower courts need the same, if not stricter, gift and travel rules than what members of Congress have. That means a judicial ethics office to pre-approve sponsored trips, no matter who — even a ‘friend’ — is footing the bill, and judges and justices should be required to file a report within 30 days of their return listing the names of other guests and the dollar amounts for every mode of transportation taken, plus lodging and meals,” Roth said in a statement. “Remember, if a judge or justice took a flight on a private plane today, the public would not learn about it until their 2023 disclosure comes out, which would be mid-June 2024 at the earliest (assuming the jurist even reported it). Such an unnecessary delay makes real oversight impossible. And Justice Thomas should update his disclosures for every year he took a private plane, as it appears that such luxurious travel has never been included under the ‘personal hospitality exemption.'”
In closing, Roth said that Thomas’ trips warrant further investigation, noting that a similar story about Justice Sonia Sotomayor traveling on the yacht of a major Democratic donor would surely receive a lot of coverage on the right. Roth was not the only one to frame the Thomas news in those terms:
Change the name of the Justice to Kagan or Sotomayor, and the name of the donor to Soros.
Then think about how Fox would react.
Clarence Thomas Secretly Accepted Luxury Trips From GOP Donor — ProPublica https://t.co/S0K8hFAsLf
— Bradley P. Moss (@BradMossEsq) April 6, 2023
Law&Crime reached out to the Supreme Court for comment on Thursday.
On Friday, the court’s Public Information Office provided the following statement from Justice Thomas:
Harlan and Kathy Crow are among our dearest friends, and we have been friends for over twenty-five years. As friends do, we have joined them on a number of family trips during the more than quarter century we have known them. 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. I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines. These guidelines are now being changed, as the committee of the Judicial Conference responsible for financial disclosure for the entire federal judiciary just this past month announced new guidance. And, it is, of course, my intent to follow this guidance in the future.
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