By Michael Waldman, The Los Angeles Times, April 25, 2023
On Thursday, ProPublica revealed that a right-wing billionaire has secretly funded a lavish lifestyle for Justice Clarence Thomas. Then on Friday, a federal judge in Texas tried to block the use around the country of mifepristone, the medication used in half of all abortions. These two dramatic twists are part of the same story. They show a judicial system out of control, in thrall to right-wing activists and swimming in cash.
It seems that Thomas routinely received luxury travel, gifts and accommodations from Harlan Crow, a real estate developer and Republican benefactor. The Los Angeles Times first reported on the flow of gifts from Crow to Thomas in 2004. Then Thomas simply stopped disclosing them, for nearly two decades.
Details are eye-popping, a tale of luxury trips to faraway vacations, luxury yachts and private jet excursions that would be valued at $500,000 a pop. A painting shows Thomas, Crow and Leonard Leo, the leader of the conservative Federalist Society, puffing stogies at a private hotel owned by the real estate mogul: an instantly iconic image of a hermetically sealed world of wealth, ideological militancy and elite chumminess.
Leo, of course, has worked with astonishing success to pack the federal courts with conservatives. Expect more to come: Another billionaire recently gave a new conservative nonprofit controlled by Leo $1.6 billion to use on his causes.
Thomas has issued a statement saying that he was merely vacationing with family friends, and he had been advised “by colleagues and others in the judiciary” that there was no need for him to disclose the billionaire’s beneficence. Even if he did ask around, that is part of the problem.
The Supreme Court’s members police themselves. Chief Justice John G. Roberts Jr. has said the justices “consult” with the code of judicial conduct for guidance, but we have no way to know exactly how they do that. That DIY approach is perilous.
In 2022, Thomas was the only justice to vote to shield records and documents from the committee investigating the Jan. 6, 2021, insurrection at the U.S. Capitol. Months later it was revealed that those documents included texts between Thomas’ wife, Virginia, and the White House chief of staff about the plot to overturn the 2020 election. Thomas never explained why he did not recuse himself despite this obvious conflict of interest.
What can be done? Start with a mandatory ethics code at the Supreme Court. The American Bar Association recently urged such a move, noting that the Supreme Court is the only court in the country without such binding rules. “If the legitimacy of the Court is diminished, the legitimacy of all our courts and our entire judicial system is imperiled,” the association said. If the court refuses to adopt such a change, Congress can act.
There are deeper structural issues at the Supreme Court itself. A surprisingly broad bipartisan national consensus supports limiting the justices to an 18-year limit, ending the life terms they now enjoy. The court is an outlier in this respect: All but one state supreme court, for example, has either fixed terms or mandatory retirement. So do constitutional courts in other countries.
This norm reflects the principle that no public official should hold that much power for that long, an insight reflected when George Washington stepped down after two terms. The best proposals would give each president a regular appointment every two years, with justices moving to “senior status” and able to hear cases on the lower courts after 18 years. This reform could likely be implemented by statute and certainly by constitutional amendment.
In the meantime, Congress or the Justice Department should investigate Thomas’ conduct to let the public know the facts and whether the gifts and trips he received violated the law. There’s ample precedent. In 1968, Congress investigated Justice Abe Fortas when it was revealed he took undisclosed support from a wealthy friend. Fortas resigned before facing impeachment.
The ethics and partisanship issues at the Supreme Court are connected to the hyper-charged activism roiling the lower courts. And soon, Thomas could be sitting in judgment on another major ruling imposed by a judge promoted and supported by the Federalist Society.
Conservative activists took advantage of a quirk in federal court rules to place the abortion medication case in the courtroom of U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas. Kacsmaryk is an anti-abortion activist who has been deeply involved in Leo’s Federalist Society.
The judge tried to keep the proceedings secret. His audacious bid to suspend the Food and Drug Administration’s long-standing approval of the drug would affect millions of women nationwide, including in states where abortion care is legal. It was quickly countered by another federal judge, and will likely head to the Supreme Court before Thomas and his conservative colleagues, who were also backed by Leo’s group. Even if Kacsmaryk’s ruling is overturned, it signals another alarming shift in norms, an abuse of power by ideologues in robes.
The Supreme Court faces a crisis. We must have confidence in the court, but that confidence must be earned. Today the court is rapidly squandering that public trust, which has fallen to an all-time low. The rule of law demands action before the next scandals explode.
Michael Waldman, author of the forthcoming book “The Supermajority: How the Supreme Court Divided America,” is president of the Brennan Center for Justice at NYU School of Law.
Image Credits: Associated Press