What Role Have “Gifts” Played In Keeping Justice Thomas On The Supreme Court?
Might not be bribery, but it's still exerting influence.
Over the last year, a series of stories have come out about the many gifts Supreme Court Justice Clarence Thomas has received from wealth political donors. The majority of this work has been done by ProPublica, sometimes in connection with other reporting organizations. This has led in part to a call for the Supreme Court to adopt some rules of judicial ethics. It has also led to questions about whether or not the gifts (many of which were not reported at the time) constitute bribery.
To boil the bribery discussion down, the question comes to whether or not these gifts caused Justice Thomas to rule or influence the court to rule in a given way on cases involving the donors, in particular real estate magnate and Republican megadonor Harlan Crow. One of the defenses against the charge of bribery was that Justice Thomas ruled on those cases in ways that kept with his prior jurisprudence. If the gifts led to no change in Thomas’s longstanding conservative behavior, how could they be bribery.
This morning, ProPublica added another story that shifts the conversation in a different direction. This report documents how, in the year 2000 (more than twenty years ago), Thomas gave an off-the-record speech at a gathering of conservatives about how the low wages were causing a number of supreme court justices to consider retiring. From the article:
In early January 2000, Supreme Court Justice Clarence Thomas was at a five-star beach resort in Sea Island, Georgia, hundreds of thousands of dollars in debt.
After almost a decade on the court, Thomas had grown frustrated with his financial situation, according to friends. He had recently started raising his young grandnephew, and Thomas’ wife was soliciting advice on how to handle the new expenses. The month before, the justice had borrowed $267,000 from a friend to buy a high-end RV.
At the resort, Thomas gave a speech at an off-the-record conservative conference. He found himself seated next to a Republican member of Congress on the flight home. The two men talked, and the lawmaker left the conversation worried that Thomas might resign.
Congress should give Supreme Court justices a pay raise, Thomas told him. If lawmakers didn’t act, “one or more justices will leave soon” — maybe in the next year.
At the time, Thomas’ salary was $173,600, equivalent to over $300,000 today. But he was one of the least wealthy members of the court, and on multiple occasions in that period, he pushed for ways to make more money. In other private conversations, Thomas repeatedly talked about removing a ban on justices giving paid speeches.
Thomas’ efforts were described in records from the time obtained by ProPublica, including a confidential memo to Chief Justice William Rehnquist from a top judiciary official seeking guidance on what he termed a “delicate matter.”https://www.propublica.org/article/clarence-thomas-money-complaints-sparked-resignation-fears-scotus
The entire story is free via ProPublica and I highly recommend reading it. This is the portion of the article that I want to highlight in particular:
Congress never lifted the ban on speaking fees or gave the justices a major raise. But in the years that followed, as ProPublica has reported, Thomas accepted a stream of gifts from friends and acquaintances that appears to be unparalleled in the modern history of the Supreme Court. Some defrayed living expenses large and small — private school tuition, vehicle batteries, tires. Other gifts from a coterie of ultrarich men supplemented his lifestyle, such as free international vacations on the private jet and superyacht of Dallas real estate billionaire Harlan Crow.
Precisely what led so many people to offer Thomas money and other gifts remains an open question. There’s no evidence the justice ever raised the specter of resigning with Crow or his other wealthy benefactors.
George Priest, a Yale Law School professor who has vacationed with Thomas and Crow, told ProPublica he believes Crow’s generosity was not intended to influence Thomas’ views but rather to make his life more comfortable. “He views Thomas as a Supreme Court justice as having a limited salary,” Priest said. “So he provides benefits for him.”https://www.propublica.org/article/clarence-thomas-money-complaints-sparked-resignation-fears-scotus
I think it is entirely true that Crow isn’t trying to influence Thomas’s political views. Both men are conservatives and I suspect are largely aligned on most issues. However, there is a separate question about the degree to which the lavish gifts are responsible for Thomas being able to stay on the court. This is especially important to consider because, if that’s the case, those gifts helped preserve the court’s conservative wing for more than 20 years.
Is that specifically bribery? Probably not–unless one wants to take up the strained argument that they are an ongoing bribe to change Thomas’s mind on leaving the bench for a more lucrative job in private practice. That said, the revelations demonstrate the complex interactions between dark money and politics.
This also demonstrates the need for the Supreme Court to adopt a more stringent code of ethics than the weak tea they reluctantly announced last month.*
* – I am sure some of our conservative readers will be tempted to respond to this post with “whatabout Liberal Justice X’s gifts.” Most of the current court has had issues with gift reporting at one time or another, though none has yet to demonstrate as significant or as long standing a pattern as Thomas. More importantly, I think those issues are also evidence of the need for a stringent code of ethics as well. So, unless you are against a code of ethics, I think we actually are in agreement that things need to change to protect the reputation of the court.
Also credit where it’s due, thank you to Nicholas Grossman for heads up about the article this morning: