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A brief primer on why Clarence Thomas doesn't give a damn about ethics
Revelations about Thomas being in the pocket of a billionaire point up the highest court's complete lack of guardrails.
By Lisa Needham
To understand the true significance of ProPublica’s story that Supreme Court Justice Clarence Thomas failed to report millions of dollars of gifts from a conservative billionaire — and why there will be no consequences — you first need to understand that Supreme Court justices are largely unfettered by any rules, even those that apply to other federal judges.
Broadly speaking, all judges, including Supreme Court justices, must recuse themselves from a case if they have a personal bias about a party or a financial interest in the case. All federal judges with the exception of SCOTUS justices have an ethics code that goes beyond recusal in cases where there is a conflict of interest. Federal judges must avoid letting any family, social, political, or financial relationships influence their conduct, but they also must avoid even the appearance of such influence. Federal judges also can’t let others give the impression they’re in a position to influence the judge.
But at the Supreme Court level, justices are excepted from all but the most cursory of oversight. Justices must file financial disclosure reports, but they are barebones affairs. The justices must state any external jobs like teaching, gifts or reimbursements received, and investments held. They must also disclose their spouse’s place of employment, though not their income.
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Justices don’t have to report gifts that are just “personal hospitality,” but in March 2023, the Administrative Office of the United States Courts stated that exemption applies only to food, lodging, or entertainment gifts of a “personal, non-business nature.” In other words, if Justice Sam Alito’s friend wants to have him over for dinner and a nice bottle of wine, there’s no need to report it.
Supreme Court justices are also bound by a law that says they need to recuse themselves if their impartiality “might reasonably be questioned” or if they have a personal bias or financial interest. However, since the Supreme Court is the highest in the land, there’s no enforcement mechanism if a justice fails to follow this law. There’s also no ethics code that helps justices determine what a relevant bias or interest might be.
Thomas takes SCOTUS corruption to new levels
This lack of guardrails has led to a lot of problematic behavior. In 2004, the late Justice Antonin Scalia and then-Vice President Dick Cheney went duck hunting together just a few weeks after the Court said it would hear a case over Cheney’s energy task force. Cheney, a former energy industry executive, wanted to keep secret whether task force members had contacts with energy industry leaders. There were calls for Scalia to recuse, but he stated, “I do not think my impartiality could reasonably be questioned,” and went on to complain that if a duck hunting trip could swing his vote, “the nation is in deeper trouble than I had imagined.”
In 2021, Amy Coney Barrett refused to recuse when the Americans for Prosperity Foundation (AFPF) was the plaintiff in a case arguing that California shouldn’t be allowed to require charitable organizations to disclose names of major donors. AFPF is the nonprofit wing of Americans for Prosperity (AFP), a conservative organization funded by the Koch brothers. AFP threw $1 million behind getting Barrett confirmed, an effort which included a national ad campaign and a network of activists that pumped out 750,000 calls and letters to senators. Barrett joined the conservative majority in holding California couldn’t require disclosure.
Earlier this year, a former colleague of Chief Justice John Roberts’ wife, Jane, raised concerns about her attorney recruitment job, which pays her large sums to place lawyers with high-profile law firms that may have cases before the Supreme Court. A Supreme Court spokeswoman said that the justices were “attentive to ethical constraints.” However, none of that attentiveness led to Roberts providing greater transparency into his wife’s work.
To be fair, it isn’t always conservative justices with ethical lapses. In 2022, Justice Sonia Sotomayor amended her 2016 disclosure to add six trips she had failed to report. Her trips, however, were all visits to universities where she participated in educational events like giving a commencement address or doing a Q&A with law students.
But none of these missteps hold a candle to Thomas. In 2004, the Los Angeles Times reported Thomas had disclosed accepting over $42,000 in gifts, far more than any of his colleagues. Thomas reported everything from $100 worth of cigars from Rush Limbaugh to $1,200 worth of tires. He also reported receiving a $19,000 Bible and a ride on a private jet. The latter two gifts came from Harlan Crow, the conservative billionaire at the heart of the ProPublica story. In the 18 years since the 2004 story, Thomas reported only two gifts, making it look like the scrutiny didn’t lead him to be more cautious about what gifts he received but rather more cautious about telling anyone.
In 2011, Thomas had to amend 20 years' worth of reports because he’d failed to disclose where his wife, Ginni Thomas, worked, including her five years at the conservative Heritage Foundation. Thomas stated that her employment was “inadvertently omitted due to a misunderstanding of the filing instructions.”
That explanation is remarkably similar to Thomas’s explanation after the ProPublica story dropped. He said he had “sought guidance” from other justices, among others, and “was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable.”
It’s way past time for justices to be accountable to a real ethics code
If we take Thomas at his word that he genuinely didn’t know what he was supposed to disclose, that only further highlights the need for an ethics code that applies to the Supreme Court. President Biden’s Presidential Commission on the Supreme Court provided several suggestions on reforming the Court’s non-existent ethical practices, including having the Supreme Court follow the same code as other federal judges, creating internal disciplinary procedures, and establishing a review procedure when a justice refuses to recuse.
An ethics code would also address Thomas’s other major problem — his wife. Harlan Crow bankrolled Ginni Thomas’s Tea Party-era lobbying group, Liberty Central, to the tune of $500,000. She collected almost $600,000 in anonymous dark money donations to her “Crowdsourcers for Culture and Liberty” group. And those are just the money issues. After Trump lost in November 2020, Ginni Thomas exchanged multiple texts with Trump’s then-chief of staff, Mark Meadows, about overturning the election. She contacted 29 Republican state legislators in Arizona asking them to help overturn Biden’s victory. She attended the January 6, 2021, “Stop the Steal” rally. And in September 2022, she told the J6 Committee she still believed the election was stolen. She is a high-profile, high-powered election denier who is awash in untraceable funds, but the stance of both her and her husband is that none of that would ever sway his decision-making.
This misses the point, as does the specious argument that Crow’s largesse doesn’t sway Thomas because Thomas would come down on the conservative side of things regardless. Supreme Court justices should be required to avoid not just impropriety but the appearance of it, just as lower court judges are required to do. There’s no reason whatsoever that the most powerful court in the land should play by the weakest rules of all.
How Elon’s stupid beef with Substack is impacting this newsletter
By Aaron Rupar
I regret having to write about this topic for the third consecutive newsletter, but I think it’s worth being transparent about how Elon Musk’s self-defeating, one-sided feud with Substack continues to affect Public Notice.
Twitter has now thankfully un-banned Substack posts and pages from Twitter searches, and is no longer preposterously flagging links to Substack articles as “unsafe.” But embedding tweets into Substack posts remains broken. As longtime readers likely noticed, it used to be easy to embed video and screencaps into these newsletters simply by pasting a tweet URL into a Substack file. But that doesn’t work anymore. Now, as you can see below, when you paste a Twitter URL into Substack, all that happens is you get a hyperlinked mess in the body of your post. Womp womp.
Why is this a significant deal for me? Because embedding tweets was the main way I brought video into Public Notice. “Aaron’s Clip Room” isn’t really possible without them. Sure, there are workarounds, including posting videos from YouTube or just linking to tweets instead of embedding them. But for reasons I won’t bore you with, none of them are entirely satisfactory replacements for embedded multimedia.
So the long and short of it is that for the time being at least, you will probably see less video in Public Notice. Thankfully, between myself and the great group of contributors who are writing for this newsletter, the overall quality of our coverage shouldn’t drop off in the slightest. But assuming Elon doesn’t do what he often does and quickly walk back this fit of pique, we’ll have to use more text and less multimedia to bring you insights on key developments in US politics and media.
Another note (pun intended): You may have noticed that I did in fact embed a post that looks a lot like a tweet just a few paragraphs up. But it’s not a tweet. It’s a post from Substack’s new “Notes” platform, now available to the public, which you can check out here. Notes, you might recall, is the short-form content feature that prompted Elon to declare war on Substack when it was announced last week. And while it’s preposterous to believe that anything within the relatively enclosed Substack ecosystem represents a real threat to a platform with the size and scale of Twitter, Notes has some slick features and will be a cool way for me to interact more with readers and fellow Substack authors — even if you can’t yet use it to post video. (Don’t worry, I already pinged Substack to badger them about adding video capabilities.)
Anyway, thanks for bearing with me over the past week or so as I’ve had to navigate Elon’s latest minefield, and I look forward in future editions of the newsletter to being able to write more about the news and less about the unstable manchild in charge of the bird app.
New podcast with Kat Abu coming this evening
I’m very excited to be joined today on my podcast by Kat Abu, the Media Matters researcher who has blown up on social media in recent months thanks to her ingenious and very entertaining “Top 5 *Totally Real* Fox News Stories This Week” videos.
I plan to ask Kat all sorts of questions about TikTok, Fox News, and Tucker Carlson, who she’s covered just about every weeknight for more than two years now. I expect it’ll be a fun and interesting discussion, so I hope you’ll subscribe to my YouTube page and check it out as soon as it goes live this evening. Or if you’re more of an audio podcast person, please subscribe to the Aaron Rupar Show wherever you get them.
If you’d like more background on Kat, I published a Q&A with her about why Tucker Carlson can’t be ignored in January, which you can read here. And if you’re reading this early Wednesday morning and have questions for her that you’d like me to pass along when we talk later this morning, let me know in the comments! I’m talking to her at 10am eastern.
That’s it for today
I’ll be back with more Friday. Thanks as always for your support.