What Role Have “Gifts” Played In Keeping Justice Thomas On The Supreme Court?
Might not be bribery, but it's still exerting influence.
![[Clarence Thomas]](https://otb.cachefly.net/wp-content/uploads/2019/02/Clarence-Thomas-570x425.png)
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:
The main takeaway is that Thomas’ spouse can’t do anything other than political hackwork–unlike Robert’s wife. Like Kavanaugh, both of them are creatures of GOP politics. And that means she can’t make the big bucks in corporate law, so they need Republicans donors to pass it to them directly.
The fact that they were not reported is a prima facie case that the recipient recognized them as bribes.
It will probably take a few decades, but I expect the last decade of SCOTUS history to eventually result in some very sweeping reforms. If there’s still enough of the US left to reform at that point.
As I’ve observed before, this isn’t small town cash for zoning bribery. This is the big leagues.
There’s some history of conservative justices, once they get a lifetime appointment to the pinnacle of their profession, turning more liberal. Thomas is ruling as expected and Harlan Crow et al are bribing him to make sure he keeps doing so.
“George Priest, a Yale Law School professor who has vacationed with Thomas and Crow, ”
“Let’s take off and nuke Yale from or orbit. It’s the only way to be sure.”
though none as significant or in as long standing a pattern as Thomas.
And we know that…how? Because I’m pretty sure ProPublica didn’t subject other Justices, particularly the liberal ones, to the same scrutiny they’ve given Thomas. Hence their disclaimer “appears to be unparalleled in the modern history of the Supreme Court.”
@TheRyGuy: so, strict rules for all justices, yea or nay? (You didn’t skip Matt’s footnote and just reflexively post based on the headline, did you?)
@Erik:
Actually, he didn’t because the text he pulled was from that footnote.
Which gets to, @TheRyGuy, I did update the text to reflect your point that we only know what is reported–though the argument that “hey maybe they have had equally significant and longstanding patterns of receiving gifts and are just better at hiding it than Thomas” isn’t quite the burn you think it is.
Also, since I have your attention, I’m wondering if you could clarify your comment from yesterday that was here and let us know:
1. What exactly do you think will happen to James and people like him in the future you envision?
2. Also who is going to do it to them?
3. And how exactly did they earn it?
People don’t need explicit quid pro quos. https://www.youtube.com/watch?v=HTTxJRAs-uA
I favor transparency for all gifts, loans, and favors for SCJs, conservatives, liberals, and others.
@Matt Bernius:
I’m often at a loss, because these volks appear to have never read about or contemplated the nature of fascism. It’s tempting to blame Jonah Goldberg and others for it, but I doubt they’ve read anything longer than a blog.
The exception is JKB, who appears to think that the only words worth reading were written before 80 years ago.
Times have changed. Americans talk a good game about ethics and the appearance of conflicts of interest, but since, say 1960, we have steadily moved away from paying serious attention to this, either as individuals or in our institutions. There are gray areas to be sure, but quite often people now just run the red light and move on as if it does not matter.
Back 54 years ago in 1969, Justice Abe Fortas was forced off the Supreme Court for far less than the ethics and conflicts problems that beset and afflict Justice Thomas today.
By the Fortas Standard Justice Thomas would have been forced off The Court, but we know that it’s about power and numbers. So, for the time being we’re stuck with Thomas and a steady decline in the credibility of The Court.
Oh, FFS. He knew what the gig meant when he took it. Literally anyone who works in a taxpayer-funded line of work knows this at the outset–you aren’t going to get rich doing it, so make your choice and live with it.
Swap out the line of work and see if the logic holds, say, for a member of Congress who doesn’t report gifts. “It’s okay, I was going to vote that way anyway” is NOT a legitimate defense.
Thomas has long had a major chip on his shoulder. I don’t care what the reasons are behind the largess he’s received from people who (routinely) end up with cases of interest before the court. It’s a conflict of interest, and Thomas (or any justice) should be REQUIRED to report the gift JUST LIKE MEMBERS OF CONGRESS, or, they shouldn’t be permitted to accept anything but de minimus gifts. And, they should recuse themselves from any cases that involve the interests of people who give them gifts.
This isn’t hard. In fact, it’s really, really obvious.
So basically Thomas hung out a “for sale” sign a quarter century ago, and right-wing billionaires stepped up to buy a piece of him. JJ is right — it’s not bribery. It’s straight-up prostitution and Thomas is the biggest whore in Washington.
@TheRyGuy: “And we know that…how? Because I’m pretty sure ProPublica didn’t subject other Justices, particularly the liberal ones, to the same scrutiny they’ve given Thomas. ”
That’s right, and a standard of investigation that should be held to in so many stories. For instance, we keep hearing that the Nazis killed six million Jews. But how do we know that FDR didn’t also kill six million Jews? Once again, scrutiny for RyGuy’s guy and none for the liberal!
Also, sitting next to a member of Congress and saying “ya know, some of us might quit if y’all don’t raise our salaries and get rid of the ban on paid speeches” sounds a little bit extortion-y.
I didn’t think I could think any less of Justice Thomas, and yet HERE WE ARE.
@Jen:
When it comes to cases like Roe v. Wade, or Hobby Lobby, or Citizens United, or Obergefell, are there any people at all whose interests are not affected?
If you want to get rich, I don’t want you on the Court. If you are already rich, you don’t need gifts. If you think it is possible to receive large gifts and remain impartial, you are not qualified to serve.
@DrDaveT: We agree on this point. My issue is that as Thomas doesn’t recuse himself on issues that directly pertain to his wife’s employment, he certainly isn’t going to recuse himself from issues that directly or indirectly benefit his, well, generous benefactors.
Yep. Which, IMHO, applies to any public office, not just the Court, which is why I said “He knew what the gig meant when he took it. Literally anyone who works in a taxpayer-funded line of work knows this at the outset–you aren’t going to get rich doing it, so make your choice and live with it.” My father graduated from West Point and went into public service. A lot of his classmates ended up quite well-off. I think sometimes he wonders if he made the right choice. I understand this issue on a very visceral level. Thomas wants it both ways, which I find appalling.
People who are “struggling” financially, as Thomas claimed he was in the early 90s, don’t go into debt to purchase a quarter of a million dollar RV. Seems Justice Thomas is obsessed with living beyond his means – or in at least generating an appearance of having more wealth than he has – and fat cats like Harlan Crow know how to take advantage of it.
My perspective is different than most due to my past association in the private jet industry. It is a world filled with legends of the class if people who have more money than they know what to do with….no exaggeration. Here’s one tale:
A Bay Area real estate tycoon met an old high school buddy in Tiburon one day. Completely out of the blue he decided to treat his pal to dinner in NYC…via a frickin’ Gulfstream. Afterwards the pilot showed me a receipt he found on a seat which included a $20,ooo bottle of wine from said dinner.
When I hear of mere vacations, and plane rides it means nothing to me. It is not at all necessary to see something HAD to be up, not in the class of people Clarence is hob-knobbing around with. I have no problem imagining Clarence being so catered to as a sort of trophy acquaintance. The uber rich hang around with other uber rich, mostly, mere money does not impress, and they are competitive people within their clique, just like normal humans do.
Yet I have no mercy for Clarence. His job makes unseemly associations important, he reaps appropriate opprobrium for his naivety. But is he being bought? I’ve seen too much outrageous spending from people like Crow to view a few vacays and jet rides as compelling evidence….of anything.
@dazedandconfused: “But is he being bought? I’ve seen too much outrageous spending from people like Crow to view a few vacays and jet rides as compelling evidence….of anything.”
I’m really not following. Just because the baubles that Crow et al throw to Thomas are insignificant to them, that hardly makes them insignificant to the man making 300K/year. It just means he’s easy to buy.
@wr: Exactly. And these aren’t just gifts. The Thomases seem to have found themselves heavily in debt after spending beyond their means more than once, only to be bailed out by generous gifts from their “friends”
@wr: 😀
@wr:
Perhaps, but I can just as easily picture it as Clarence arrogantly doesn’t give a hoot what people or his peers on the Court think of him, lacking any evidence of his judicial views changing after the gift.
@dazedandconfused: If that were the case, he would have no reason to specifically avoid reporting these gifts. The high value would be a selling point in that case, wouldn’t it? “Look, I get the crap SCOTUS salary, I vote how I want, and I get the private jet.”
I think you’re right that to his benefactors it doesn’t matter – this is couch cushion change – but Thomas seems to understand the relationship is unseemly.
Guy knows he’s doing something wrong, and now that he’s been caught he plays the “I wasn’t changing my view!” card. Which is fine for broad cases where we all know what the justices will say, but the ones that specifically deal with corner scenarios that don’t have a clear conservative orthodoxy – he still rules in those too.
The fact that they had no role in kicking him off the court, is far more troubling than any role they had in keeping him on the Court. It speaks for more of the other justices willingness to accept obvious corrupt behavior rather than be held to account for their own transgressions.
There used to be an expression: “public service”. I can’t quite remember what it means since it’s been a long while since I heard it but I’m pretty sure Justice Thomas doesn’t incorporate it.
@OzarkHillbilly: I think that this might be a proper impetus/excuse for expanding the court – perhaps dramatically.
Much of the problem with Thomas is that Republicans will never allow him to be impeached because the balance of power is so tenuous at the moment that a single seat means, potentially, decades of lost cases. Thomas knows this, and he’s exploiting the power position he knows he is in.
If the court is radically expanded – say by 25 justices over the next 10-12 years – and its rules changed so that 9-justice panels are truly randomly assigned for each case, then it becomes impossible to predict who will hear a specific case – and the culture of the court will change significantly.
I don’t know if such rule changes would stand up to legal muster – but I believe the Constitution is silent about such things.
“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.””
Food stamps for the poor, though… those are the benefits we need to limit.
@TheRyGuy: I skipped over this idiocy yesterday.
The *minute* the original story by Pro Publica published, I can guarantee that conservative outlets started digging into liberal justices–probably going back to the Warren Court. The fact that nothing has come out about other justices isn’t for lack of trying, I can assure you. Conservatives would love, love, love a good “whataboutism” in this story.
The same, incidentally, holds true for the other conservative justices. The fact that some minor stuff about Alito came out leads me to believe that truly, Justice Thomas has carved out a real niche for himself in leveraging “gifts” from wealthy “friends.”
@Jen: Yeah, something has changed in the way we view “public service.” We used to think that influencing our nation’s course now and in the future was compensation for the (relatively) low wages of the job. Apparently that is no longer the case and getting rich while “serving” the public is a perk.
Well, at least we can probably all agree that Justice Clarence Thomas is a very gifted lawyer.
@ptfe:
Like I said I have no mercy for the guy, and I forgot to mention: I think the Pro Public story is entirely plausible.
The Heritage rascals are obsessed with the courts and they have a lot of rich friends. They help “right-thinking” individuals through the process of becoming a potential judge or an SC justice in a lot of ways, but seem to be smart enough not to try to outright bribe them.
@JohnSF: Actually, from what I recall, there’s no particular evidence that Thomas was skilled as a lawyer. Brittania.com tells us he worked as a bureaucrat at the Department of Ed and EEOC before he was named to the Supremes.
The bright, shiny object to avoid the issue of the day –> Biden Inc. The most corrupt crew certainly in my lifetime.
Wow. Just wow.
@Jack:
You missed the Trump years?
@Just nutha ignint cracker:
“Gifted” was a bit of snarkey on my part. He has gifts; lots of gifts.
I f he didn’t before, he’s got them since.
LOL
@JohnSF: I missed the pun. My apologies!