New reporting on Supreme Court corruption has reignited calls for a code of conduct to be instituted for the justices.
The Washington Post reported Thursday evening that tens of thousands of dollars were directed to Justice Clarence Thomas’s wife, Ginni, but that her name was left off the paperwork. The payments came from Leonard Leo, whose organization, the Federalist Society, has been a leading force in securing the appointment of conservatives to the judiciary. In January 2012, Leo instructed Kellyanne Conway — the pollster who would go on to become a close adviser to Donald Trump — to pay Ginni Thomas but left a note indicating that the paperwork accompanying the payments should make “No mention of Ginni, of course.”
Ginni Thomas was an active participant in the effort to overturn the 2020 presidential election, including attending the “Stop the Steal” rally in Washington on Jan. 6, 2021, that preceded the violent attack on the U.S. Capitol by Trump supporters. Her husband, Clarence, was the only justice to support a bid by Trump to block the committee investigating the events of the Capitol insurrection from accessing some presidential records.
Earlier Thursday, ProPublica reported on further ties between Clarence Thomas and the billionaire Harlan Crow, whom he is reported to have met in the 1990s. ProPublica reported that Crow had paid roughly $100,000 in tuition for Thomas’s grandnephew, whom the justice was raising “like a son.” Thomas did not disclose the payments as a gift.
ProPublica also reported last month that Crow took Thomas on luxury vacations, then revealed that Crow had bought property from Thomas in deals the justice did not disclose. Days later, the Washington Post reported that Thomas had been claiming income from a real estate firm that has not existed since 2006.
Senate Finance Committee Chairman Ron Wyden, D-Ore., released a statement saying he wanted Crow to provide a full accounting of the gifts he had given to Thomas by May 8 or Wyden would “explore using other tools at the committee’s disposal to obtain this critical information.”
“With every new revelation in this case, it becomes clearer that Harlan Crow has been subsidizing an extravagant lifestyle that Justice Thomas and his family could not otherwise afford,” Wyden said. “This is a foul breach of ethics standards, which are already far too low when it comes to the Supreme Court.”
The latest reports on potential ethics violations from Thomas come in conjunction with reporting on other justices, including Sonia Sotomayor and Neil Gorsuch, both of whom did not recuse themselves in cases involving their book publisher. It was also reported that Gorsuch had made a real estate deal with the head of a top law firm. Public opinion of the Supreme Court has dropped to historic lows following the 6-3 conservative majority’s unpopular decision on abortion last year. Republican Senate leader Mitch McConnell’s refusal to hold even one confirmation hearing for President Barack Obama’s nominee Merrick Garland in 2016, compared with his speedy confirmation of Trump nominee Amy Coney Barrett in the run-up to the 2020 election and the contentious 2018 confirmation hearing of Brett Kavanaugh, have all contributed to the court’s current credibility issues.
The nine Supreme Court justices are not bound by the same code of conduct as the rest of the federal judiciary. In February, the Washington Post reported that the justices had discussed setting up their own ethics rules but had failed to come to a consensus on what the rules should be. That same month, the American Bar Association adopted a resolution calling on the court to establish such a code, writing, “The absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court.”
Generally, Democrats have been hesitant to call on Thomas to resign. But some, like Reps. Ted Lieu of California and Alexandra Ocasio-Cortez of New York, have made clear that they think the justice should step down.
“This is corruption,” Ocasio-Cortez tweeted, referring to the story about payments to Ginni Thomas. “Plain and simple. And each day that passes, the Supreme Court is looking less like a bench and more like an auction house. Thomas should resign immediately and Roberts should see to it that he does.”
Senate Judiciary Committee Chairman Dick Durbin, D-Ill., responded to the ProPublica report on Crow's covering of tuition for Thomas by asking Chief Justice John Roberts to handle the situation. Roberts declined an invitation from Durbin to testify himself or to send an associate justice to speak for the bench at a hearing on Supreme Court ethics earlier this week.
“I hope that Chief Justice Roberts reads his story this morning and understands something has to be done,” Durbin told CNN. “The reputation of the Supreme Court is at stake here. The credibility of the court when it comes to its future and decisions [is] at stake, and his reputation as a leader of this court is really an issue as well.”
The committee cannot currently move forward with legislation or issue subpoenas given the absence of Sen. Dianne Feinstein, D-Calif., the 89-year-old legislator who has been out recovering from shingles since February. (Durbin has not called on Feinstein to step down and asked Republicans to show “kindness” in replacing her on the Judiciary Committee, which they have thus far declined to do.) Bills on the issue have been proposed, such as the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, introduced by Sen. Sheldon Whitehouse, D-R.I., which would require the court to adopt more rigorous disclosure rules, in line with those required of members of Congress.
At Tuesday’s Judiciary Committee hearing, the one Roberts declined to attend, Republicans made clear that they had no interest in instituting a code of conduct for the court, despite pointing out benefits that were also received by the court’s liberal justices, including a number of trips taken by the late Ruth Bader Ginsburg.
Ranking member Sen. Lindsey Graham, R-S.C., said, “What I would urge the court to do is take this moment to instill more public confidence,” while Sen. Thom Tillis, R-N.C., added, “I think that they could update, refresh and address the concerns without requiring any congressional action.”
Other Republicans on the committee said the investigations into Thomas constituted a witch hunt that dated back to his 1991 confirmation hearings, where he was accused of sexually harassing a female colleague, and the two witnesses called by the GOP stated that Congress did not have the constitutional authority to introduce any sort of policing of the court. Other witnesses disagreed, including retired federal judge J. Michael Luttig, a conservative who was appointed to the Court of Appeals in 1991 by President George H.W. Bush and was considered for the Supreme Court by President George W. Bush.
In written testimony submitted to the Judiciary Committee, Luttig wrote that Congress has “the power under the Constitution” to “enact laws prescribing the ethical standards applicable to the non-judicial conduct and activities” of the Supreme Court justices. Luttig called on the court to police its own conduct better, saying it “should want, without quibble, to subject itself to the highest possible professional and ethical standards that would render the Court beyond reproach.”
The flood of reporting on potential ethical lapses has riled the sitting justices. In an interview with the Wall Street Journal last week, conservative Justice Samuel Alito lamented the attacks on the court and the lack of support the justices had received from other members of the legal profession.
“We are being hammered daily, and I think quite unfairly in a lot of instances,” he said. “And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense.”
In a statement to Yahoo News on Monday, Whitehouse said, “I’m not surprised that a hard look at the court has revealed a torrent of ethical lapses by the justices.”
“A noxious cocktail of creepy rightwing billionaires, phony front groups, amenable justices, large sums of money, and secrecy has been brewing at the Supreme Court for years now,” Whitehouse continued. “To repair the American public’s trust in our highest court, the justices need to implement a transparent and enforceable process for investigating misconduct. If the court won’t act, Congress must, and passing my SCERT Act would be the right place to start.”
A Yahoo News/YouGov poll last month found that only 12% of Americans surveyed reported that they had a great deal of confidence in the Supreme Court, with 25% saying they had none. Forty-four percent of respondents in total said they had confidence in the way the court was handling its job, versus 45% who disapproved.