The ProPublica Reports on Justice Thomas

It’s tiresome to blog so much about the Thomases. However, the media war against them is relentless and the hyperbolic attacks keep coming, as they have since the battle over Justice Thomas’s confirmation decades ago.

The latest consists of two “bombshell” reports by ProPublica and the ensuing media and political frenzy over them. One report details lodging, transportation, and other gifts provided to Justice Thomas and his wife, Ginni, over the years by their longtime friend Harlan Crow, a wealthy real estate developer and conservative political activist. The other describes Crow’s 2014 purchase of the home of Justice Thomas’s mother, in which the Justice had a one-third ownership interest. The reports note that Justice Thomas did not list these gifts or the house sale on his financial disclosure forms. According to ProPublica, all of this violated the Ethics In Government Act.

The ProPublica reports received extensive coverage. They generated the usual cries of outrage from left-leaning pundits and Democratic politicians, including calls for Justice Thomas to resign or be impeached. Many on the left also cited the reports as further undermining the “legitimacy” of the Supreme Court.

Like other alleged “scandals” involving the Thomases, this one is greatly exaggerated.

ProPublica casts its reports in the worst possible light, frequently embellishing the facts. ^[1]For example, the report values the Indonesian cruise on Crow’s “superyacht” and transportation to and from it on Crow’s plane as a gift worth over $500,000–the total cost the Thomases … Continue reading However, there’s nothing illegal or nefarious about the interactions between Crow and the Thomases. To state the obvious, Supreme Court Justices, like everyone else, have the right to form friendships with whomever they please, including rich and politically active individuals. They are also free to accept generosity from their friends so long as they do not violate conflict of interest prohibitions. There is no indication of such violations here. Crow stated that he had no business before the Supreme Court, that the Thomases never requested any of his hospitality, that he never discussed court cases with Justice Thomas, and that neither he nor, to the best of his knowledge, anyone else present sought to influence the Justice on any legal or political issue. Nothing in the ProPublica reports contradicts these assertions.

The only legal issue raised by the reports is compliance with financial disclosure requirements. As it turns out, just a single item described in the reports clearly required disclosure by Justice Thomas. That was the 2014 sale of his mother’s house to Crow. Reportedly, Justice Thomas will amend his filing to add this transaction.

Most if not all of the largesse Crow provided the Thomases, including visits to his properties and the much-ballyhooed Indonesian cruise on his yacht, were exempt from disclosure under the applicable reporting rules. Those rules contained an exception to disclosure for “food, lodging, or entertainment received as ‘personal hospitality of any individual.’” The one grey area is whether the exception covered transportation in Crow’s private plane. Ethics experts differ on this. The experts sought out by ProPublica said unequivocally no. Others regard the rules then in effect as too vague to permit a definitive conclusion. The rules were subsequently amended (before the ProPublica reports came out) to specifically exclude from the “personal hospitality” exception “transportation that substitutes for commercial transportation.”

In sum, ProPublica’s extensive investigation uncovered only one definitive financial disclosure error by Justice Thomas. He has made other mistakes in his financial disclosure filings, as have other justices, but none evidences an intent to conceal. One is a minuscule oversight that hardly bears mention. More significantly, he neglected to report Ginni’s employment income for some years. However, her jobs and activities were well known, having been subject to vigorous media coverage over the years. Nor is there anything secretive about the Thomases’s  relationship with Crow. They have been quite open about the hospitality they received from Crow, and it has also been subject to media coverage going back at least to 2011. At the same time, it’s fair to say that Justice Thomas should be more diligent in his financial disclosure filings. Indeed, he would be well advised to be extra scrupulous since he will surely continue to wear a huge target on his back for the remainder of his service on the Court.

Moving beyond the legalities, is there anything inappropriate or untoward in Justice Thomas’s interactions with Crow? For most people, the answer likely depends on their overall view of him. Justice Thomas is a polarizing figure to such an extent that impressions of him have become largely intractable. In this regard, the ProPublica reports are somewhat like a Rorschach test. His detractors will view them as further confirmation that he is a corrupt tool of white, reactionary plutocrats—and, according to many on the identity-obsessed left, a traitor to his race. His admirers will view them as more spurious attacks on an outstanding jurist who has demonstrated independence and intellectual consistency since his appointment to the Court. To the latter, the notion that Justice Thomas’s relationship with Crow could affect his rulings is laughable.

Two additional points should be noted. First, Justice Thomas is by no means unique among Supreme Court Justices in accepting largesse from wealthy benefactors. A recent New York Times editorial observed that virtually all members of the Court for decades, both Republican and Democratic appointees, have accepted gifts and travel, both costly and modest, from outside individuals and groups. The editorial offers examples, some listed on financial disclosure forms and some not.

The Times editorial asserts that Justice Thomas is the most “egregious” (whatever that means), but there is no comprehensive basis for comparison. No justice past or present has been subjected to the intense scrutiny the media reserves for him. Furthermore, a few examples not mentioned in the editorial cast doubt on its assertion. Both former Justices William Brennan and William O. Douglas received financial benefits far exceeding $100,000 in today’s dollars. It’s certainly fair to consider whether existing Supreme Court ethics rules should be tightened, as many urge. But there is no valid reason to single out Justice Thomas for special condemnation.

Second, some pundits argue that Justice Thomas’s behavior is equivalent to or worse than former Justice Abe Fortas’s, and that he should follow Fortas’s example and resign. (See, e.g., here and here.) This is absurd. Justice Fortas received cash payments from benefactors with potential business before the Court that reached well into six figures in today’s dollars. The gift that led to his resignation came from convicted securities fraudster Louis Wolfson. Allegedly, Wolfson sought Fortas’s help to obtain a presidential pardon. Fortas denied acting on behalf of Wolfson and returned the payment but admitted discussing Wolfson’s “problems” with him. On top of this, Fortas regularly attended White House staff meetings while serving on the Court and briefed President Lyndon Johnson on internal Court deliberations.^[2]See here, here, and here for background.

The payments to Fortas were far more dubious than any largess Justice Thomas received, and his continued engagement with the White House as a sitting Supreme Court Justice was breathtakingly inappropriate. His conduct was much more serious than anything Justice Thomas did in terms of raising questions of judicial independence and objectivity. This is not to suggest that Fortas was corrupt; to the contrary, he had a distinguished career before and after his service on the Court. The point is that the accusations against Justice Thomas, even if fully credited, do not remotely resemble Fortas’s issues.