David Remnick: Compared to presidents and legislators, the Justices of the Supreme Court are beholden to no one. Concerned only with the law, with the Constitution, they pretend to sit majestically, serenely beyond grubby politics. They have no campaigns to finance, no higher positions to angle for. This is the source of their integrity, or at least that's the theory, but the cascade of revelations coming out about Justice Clarence Thomas suggest something else, something far less high-flown. There's the glitzy vacations and the island-hopping yachting adventures underwritten by a right-wing billionaire patron. There's the undisclosed real estate deals. Then there's Thomas's wife, Ginni Thomas, and her ties, financial and political, to various conservative groups, as well as her full-throated support of Donald Trump and the attempt to overturn the 2020 Presidential Election. There are perhaps precedents for this kind of thing, but Thomas seems to have taken matters to the next level.
The New Yorker's Jane Mayer co-wrote the book, Strange Justice, about Clarence Thomas almost 30 years ago. Last year, she reported on Ginni Thomas's influence in Washington, and now Jane is working on a book about the conservative movement to control the courts.
Jane, you've been covering Clarence Thomas for a very long time, right from the beginning. What stands out to you from these revelations that were first published in ProPublica?
Jane: I suppose one of the things that amazed me about the ProPublica story, which was really rigorously reported, was the extent to which Clarence Thomas has been a repeat and chronic offender when it comes to making public disclosures that Supreme Court Justices are supposed to make about their finances. This isn't the first time. This has been going on for years. It's just maybe the most egregious examples of it.
David: Well, what's the history? Let's go back and go through it.
Jane: Well, if you go back to 2004, The Los Angeles Times wrote a story at that point, saying that Clarence Thomas had taken a couple of very expensive gifts from a billionaire from Texas named Harlan Crow, whose family fortune was made in the real estate business. Harlan Crow had, for reasons unknown, given Clarence Thomas an original Bible that had been owned by the abolitionist Frederick Douglass, which was worth $19,000, and had also given to Clarence Thomas, who was on the Supreme Court back in 2004, a $15,000 bust of Abraham Lincoln. The L.A. Times reached out to Harlan Crow and asked, what is this about? He said, well, I really like Clarence Thomas, and I knew he liked Frederick Douglass, and I saw this in an auction catalog and just gave it to him.
That was the last time that Clarence Thomas disclosed private travel, including at that time he disclosed that Harlan Crow had paid for his travel to a very chi-chi, exclusive men's gathering called Bohemian Grove.
David: Oh, where they all get together and they pee on the lawn and they have a very great time.
Jane: That is what's always said. [crosstalk]--
David: What are the ethical considerations here? What are the guidelines that are set down by the Supreme Court, and in what way, even in 2004, was Clarence Thomas in violation of them, if he indeed was?
Jane: Well, what was interesting was in 2004, he actually was complying with the regulations which required disclosure, but then there was bad publicity that came out of it, and he stopped complying.
David: If you reported, there's nothing wrong with it?
Jane: Well, up to a point. The rules for Supreme Court Justices when it comes to financial disclosures are very lax, but there are a few categories of financial disclosures that have to be made publicly. They include real estate transactions and gifts. If a Justice can say that the gifts fall under the category of personal hospitality from a friend, then they don't need to be disclosed. Basically, it's been understood over the years to mean if you go to a friend's house for dinner--
David: Right, they give you a lamb chop and a salad, that's nice, but a yachting vacation in Indonesia, that's more complicated.
Jane: Exactly, so it should have been disclosed. Are there things that even Supreme Court Justices are not just supposed to disclose but also not to take? Well, yes, there are. There is actually a law that applies to all judges, including Supreme Court Justices, that says that they are not supposed to preside over a case in which a family member has some kind of interest in the outcome. They're certainly not supposed to take gifts from people who have cases in front of them.
David: In 2011, it came to light that Thomas hadn't disclosed hundreds of thousands of dollars, more than half a million dollars, that his wife Ginni Thomas had earned from the Heritage Foundation. That's quite a substantial amount of money. Did that trespass any ethics violations?
Jane: Yes. Again, that's why he is a chronic offender on this subject. He was supposed to have disclosed a spouse's income, and he said, oh, he just had misunderstood the filing requirements, and he amended his filings to reflect that she had earned, I think it was between $600,000 and $700,000 over the years from the Heritage Foundation, which is an organization, a conservative think tank that has very distinct legal issues and a legal agenda that it promotes through cases in the Supreme Court.
David: Does Harlan Crow have any cases that are either in front of the Supreme Court, were in front of the Supreme Court, or potentially in front of the Supreme Court?
Jane: He has said he has no cases that have been in front of Clarence Thomas, and Clarence Thomas has said the same. They have said that this is just a friendship, and what's wrong with that?
David: Well, I ask you that question. What's the fuss?
Jane: It's a lot of money [chuckles] from one benefactor. If you step back, basically, what are judges supposed to be? They're supposed to be honest, they're supposed to be independent. I think it stretches common sense to think that a judge could be independent when he takes that much money from one person. What are we talking about here? Maybe millions of dollars worth of gifts and travel and vacations from Harlan Crow.
David: Is there any history to this in the Supreme Court? Have other Justices, liberal, conservative or centrist, that we know of taken gifts like this?
Jane: First of all, the problem is you don't know what you don't know as a reporter, if these things are undisclosed. There's certainly other Justices who have taken lavish trips that are paid for by others, maybe not as-- I don't think anything anywhere near as lavish as this Indonesian trip or as regular as going every summer, as Clarence Thomas appears to have done, to an estate that Harlan Crow has up in the Adirondacks. There are other Justices who certainly have gone on junkets that are paid for by others, and I think that they are Justices both of the liberal persuasion and of the conservative ones.
David: For example, in 2018, Ruth Bader Ginsburg got a private tour of Israel that was paid for by an Israeli billionaire named Morris Kahn who has had business before the court. I don't remember there being a giant fuss about that.
Jane: Well, maybe there should have been. Personally, I feel like all of this is very troubling. I think that we know from when Antonin Scalia died, that he died at a hunting ranch, basically, that was privately owned and on a trip that was undisclosed. We wouldn't have known about it except for the fact that he suddenly and unexpectedly died there. It turned out he had taken oodles of similar hunting trips over the years that were paid for by private individuals.
David: How different is this from members of the executive branch, White House staff, Presidents themselves, and members of Congress?
Jane: There are far fewer disclosure requirements for the Supreme Court than for those in any other branch of the government. The other problem is really that unlike the other branches of the government, there's no enforcement mechanism for the Supreme Court. It's basically the honor system, and there's no way to deal with violations, really, which is why we're in this situation here with Clarence Thomas. How do you deal with this at this point? There's no Inspector General at the Supreme Court. There's no ethics advisor at the Supreme Court. It is just the Justices are trusted to do the right thing.
David: Now, the question arises, what's to be done about this? One of the most vocal proponents of ethics reform at the court, that's been going on for years, has been Democratic Senator Sheldon Whitehouse, who I know you've talked to any number of times. He's calling for Justice Thomas to be referred to the Attorney General for potential violations of government ethics laws. On Tuesday, we heard the allegations are now with a judicial committee that could, at least in theory, make that referral.
Explain what this committee is and how this could all work. What's ahead for Justice Thomas [crosstalk]--
Jane: There is an organization called the US Judicial Conference, which basically administers the courts. It is the body that sets the requirements for things such as these disclosures. It interprets the Ethics in Government Act and oversees its administration for the courts. What's happened here is Congressional Democrats and several watchdog groups have demanded that the US Judicial Conference open an investigation into Clarence Thomas, looking into his lack of disclosures, and that if they find that these omissions were willful, that they then make a recommendation to the Justice Department that it open an investigation into Clarence Thomas.
David: Where could that lead?
Jane: [chuckles] It could lead to a fine, it could lead to civil charges, it could even lead to criminal charges, all depending on what the circumstances are. I would say it's very far-fetched to imagine that this would lead to criminal charges. What it would also lead to, potentially, is just a widening scandal here that will create increased pressure on Clarence Thomas and on Chief Justice John Roberts to do something.
David: Well, right. You raise John Roberts, Chief Justice. If I'm watching MSNBC, I'm hearing a lot of people say, Justice Roberts must do something. If I'm watching, of course, Fox, I'm hearing a lot of people saying, this is just a liberal vendetta. Let's stick with the Roberts part for the moment. What can Roberts do? What power does he actually have here? Are other members of the court, either present or past, similarly culpable?
Jane: Well, as Chief Justice, he's known to be someone who cares a lot about the reputation of the court and is an institutionalist, and it's clear that this is putting a cloud over the court. One suspects that he cares about the situation, but what can he do? He has said that he is considering and looking into and conferring with the Justices about the possibility that they will agree to abide by the same ethics rules that the lower courts do. They've been looking at this for a number of years though, and it doesn't seem that Chief Justice Roberts has made much progress on it.
David: In other words, there's no inclination on the part of Chief Justice Roberts to single out Justice Thomas in any way.
Jane: I think it's really unlikely. Basically, the court has been described to me as nine separate law firms. Each one of these Justices has their own law firm and confers with its own clerks and people. The harmony that exists on the court, to the extent that it has, is because no one really tells the others what to do. Again, it's the honor system at the Supreme Court. If there is dishonor, there's really only one remedy that's ever been spelled out in the Constitution, and that's impeachment.
David: The drama of Clarence Thomas has been going on for a very long time. He was nominated to the court by George H. W. Bush. Of course, his confirmation hearings were unforgettable, and it seems like there's been a great deal of drama along the way, despite his relative silence at least on the bench. Where is this story going? We even heard time and again that his health is not the best, that he might retire. I think optimally, he'd prefer to retire when there's a Republican in the presidency. Where is this story going for Clarence Thomas?
Jane: It's hard to say, but Clarence Thomas has a history of being defiant in the face of criticism. In a way, it seems to embolden him to double down. It is worth thinking about, though, how some-- In the modern era, there have been Supreme Court Justices who have been forced off, or at least one, and that's Abe Fortas, who in 1969 was forced off of the Supreme Court because of revelations about his financial wheeling-and-dealings with a former client.
David: The Abe Fortas example, though, which is absolutely apt, is different though in kind, isn't it, from Clarence Thomas? Clarence Thomas, he has got a friend. He just happens to be a billionaire. His hospitality is [chuckles] glitzier than most, as opposed to financial wheelings-and-dealings to benefit the pocketbook of a Justice.
Jane: Yes and no. The second story that ProPublica published was about a real estate deal involving Clarence Thomas and Harlan Crow. It's a deal in which money went right into Clarence Thomas's pockets. He owned a house in Savannah, Georgia. His mother was living in the house. They sold the house to Harlan Crow. That money went to Clarence Thomas, and interestingly, Clarence Thomas's mother has been living in that house ever since. She still lives there today, I think she's 94 years old, rent-free, thanks to Harlan Crow.
David: That seems even more egregious.
Jane: I think it's a very dangerous situation for Clarence Thomas, really, because there's a specific category of finance that has to be disclosed according to the 1978 Ethics in Government Act, and it's real estate transactions over $1,000. This one was for something like $133,000. There's really no way to argue that he shouldn't have disclosed this. He should have disclosed this. He has said it was an oversight and that he didn't understand.
David: He just forgot.
Jane: That's what he said.
David: He's a Supreme Court Justice, and he didn't understand the requirements. That seems to bend, if not break, credulity.
David: Jane, if it's true, and it seems that it is, that trust in the Supreme Court, the integrity of the court is getting lower all the time, what effect does that have on our political lives?
Jane: Oh, I think it's very dangerous for democracy. The glue that holds us together is the rule of law in this country. People have to believe when they go in front of a court, and particularly in front of the Supreme Court, that they're getting a fair shake and that this isn't just politics. That whether they are a Republican defendant or a Democratic one or whatever else, that it's justice that's going to prevail, not just partisan politics.
David: Jane Mayer is a staff writer at The New Yorker, and she's the co-author of the book, Strange Justice.
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