We’ve been learning over the past month that Justice Clarence Thomas — and to a lesser extent, other justices — have benefited from real estate sales, fancy trips and/or payments to family members without disclosing such transactions or without recusing themselves from cases that could be a conflict of interest.
Perhaps the most egregious example has just been reported by The Washington Post: Thomas’s wife was secretly paid at least $25,000 in 2012 by a conservative judicial activist. This person, Leonard Leo, went out of his way to keep the money secret. “No mention of Ginni, of course,” he said, referring to Thomas’s wife, Virginia “Ginni” Thomas.
Ginni Thomas. (Jabin Botsford/The Washington Post)
A few things to know about this.
We don’t know whether Clarence Thomas broke the law. Justices are supposed to report their finances. Intentionally falsifying a financial disclosure could be illegal. But Thomas has said he made innocent mistakes, and there’s not much of an enforcement mechanism to prove otherwise.
The Supreme Court doesn’t have a code of ethics. There are few rules governing family members and what gifts justices should disclose. Congress learned this week that it could create a code of ethics for the court, but passing a law is unlikely given how Republicans have rallied to Thomas’s side. (Thomas has been a reliable conservative vote for decades.)
There isn’t a clear way to kick Thomas off the court. Congress has the power to impeach Supreme Court justices and remove them from the bench, but that has never happened in U.S. history. (In 1805, Justice Samuel Chase was impeached by the House but acquitted by the Senate.)
Congress could also turn the lights out on the Supreme Court and stop funding it, Josh Chafetz, a legal expert at Georgetown University, told The Post.
But these are aggressive actions, and Democrats seem reluctant to wage a full-out battle with the Supreme Court. As unpopular as the court is in public opinion polls, Congress is even more unpopular.
One other possibility — beyond the status quo — is that Thomas is pressured to quit. It’s happened before. In the 1960s, a Supreme Court justice reluctantly resigned over accepting $20,000 from an outside group, under threat of impeachment and a potential criminal investigation. Watchdog groups and some Democratic lawmakers have urged the Justice Department to investigate Thomas.
For now, all nine justices signed a letter saying they will keep filing financial disclosures and trying to avoid conflicts of interest, but they maintained they should get to decide most of the rules themselves. They argue that more ethic rules could be corrupted to keep certain justices off cases.
Meredith McGehee, who used to run the nonpartisan watchdog group Issue One, told me recently that a common refrain in watchdog groups is that the Supreme Court is the least accountable part of the federal government.
The justices of the Supreme Court. (Jabin Botsford/The Washington Post)
Since we’re talking about it, here’s what else the Supreme Court is working on
Despite all the drama, the court still has work to do. Just as the court sets its own ethic standards, justices set their own schedules.
A typical term for the Supreme Court begins in October, when the justices hear cases, and ends in June as they issue decisions.
For some reason, the Supreme Court is moving slowly this term, deciding the lowest number of cases by this point in the past 100 years. One possible holdup is the time the court spent investigating the leak of the Roe v. Wade draft ruling last year, said Amanda Kellar Karras, who heads the International Municipal Lawyers Association. They never officially found the leaker.
The court tends to leave its more controversial cases for the end of its term. We expect a lot of decisions in the next month, such as: Can a Colorado designer tell same-sex couples she won’t create a website for their weddings?
Will the court give state legislatures sole authority to set rules for elections, ignoring governors and state constitutions?
Can the Biden administration move forward with its student debt relief program?
Can tech companies such as Google be held responsible for allowing terrorists to use their platforms?
It’s possible that a battle over the abortion pill could come back to the Supreme Court soon.
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