A justice's lapse in judgment casts a cloud over court

Berl Falbaum

Given the controversies in which they are engulfed, it is not unfair to conclude that U.S. Supreme Court Justice Clarence Thomas and Robert Hunter Biden, the son of the U.S. president, both Yale Law School graduates, failed courses in ethics.

Of course, they could have cheated and, given their ethical compromises, it is not unjust to consider that as well.

Both men are involved in questionable ethical behavior, and neither seems to understand what the big brouhaha is all about.

First, Thomas, a Supreme Court associate justice since 1991:  

ProPublica, the online news service, reported that Thomas traveled on billionaire mega-donor Republican Harlan Crow’s 162-foot yacht, vacationed at Crow’s luxury resort, and flew on his plane around the world on trips worth hundreds of thousands of dollars.  (As I was completing this column, ProPublica revealed that in 2014 Thomas and his family sold properties worth more than $130,000 to Crow, but the justice did not disclose the sale, a possible violation of federal law which requires disclosure of such transactions of more than $1,000).

In defending himself, Thomas said Crow and his wife, “are among our dearest friends, and we’ve been friends for over 25 years. As friends do, we joined them on a number of family trips during the more than a quarter of a century we have known them.”

Thomas continued: “Early in my tenure at the court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the court, was not reportable.”

He added: “It is, of course, my intent to follow this guidance in the future.”

That prompts the following responses: (1) He should seek more ethical colleagues; and (2) We are disturbed that he does not plan to change his behavior.

Now, Crow may not have had cases before the Supreme Court during Thomas’s tenure -- as Thomas makes clear -- but the justice must be aware of Crow’s political interests, and rulings opposed to those beliefs would most certainly impair their relationship. Would Crow invite the justice on a trip after he voted against a major policy backed by the billionaire?

Sure, Crow, a “mega-Republican donor” may really like his pal, but presumably he is also aware of the direct and indirect political influence he can have on the justice with his relationship -- without saying a word. He is not a “mega-dummy.” 

To assure skeptics (like us), Crow is quoted in news articles, stating: “We have never asked about a pending or lower-court case, and Justice Thomas has never discussed one, and we have never sought to influence Justice Thomas on any legal or political issue.”

The major principle involved here, that Thomas ignores, is that public officeholders must not only avoid direct conflicts of interest, but also the appearance of such conflicts. Thomas may consider that unjust, but that is the sacrifice politicians seeking public office must make to have the privilege -- and it is a privilege -- to serve the public interest. 

What is particularly troubling is that while lower courts are bound by codes of conduct, the Supreme Court does not have one. Perhaps it’s time to enact one since it’s clear that justices like Thomas are taking advantage of the void, and the other eight members have been silent on the issue, apparently intent on letting the controversy die on its own.

Oh, and let’s not forget another “minor” conflict involving Thomas’s wife, Virginia “Ginni” Thomas, who worked actively, behind the scenes, to overturn the 2020 election.

Are we wrong and too cynical to suggest that Thomas should have recused himself from a case involving the release of White House records related to the January 6 insurrection?

Should we assume that since Mrs. Thomas did not have any cases before the court, Thomas was not guilty of any ethical violations?

We will go way, way out on a limb:  Besides talking about what was for dinner, he and his wife might --- just might --- have talked about the election and other related Trump politics that Mrs. Thomas supports.

True, Mr. Justice, your wife did not have a case before the court, but nevertheless we just can’t help envision a scene in which you commend her cooking and then add, inadvertently: “I (agree, don’t agree) that the election was stolen.”

Or we can envision -- again, unfairly -- that your wife tells you she was dusting in your office and has a suggestion for some language in a draft opinion she happened to see on your desk.

Since your colleagues have signed off on your behavior, you might ask Crow to invite them on your next trip.

We’ll cover Hunter Biden in our next column. He is also guilty of ethical compromises even though he doesn’t have a case before the Supreme Court.




Berl Falbaum is a veteran political columnist and author of 12 books.