Who judges the judges?
For a man who spent decades sitting in silence on the Supreme Court bench, Clarence Thomas has certainly found a way to get his name in the news.
Since the beginning of 2022, Thomas has seen his wife Ginni exposed as having been deeply involved in the plot to overthrow the 2020 election, dealt with revelations that he had accepted more than a half-million dollars in unreported gifts from a right-wing activist, sold unreported property to the same source, as well as allowing him to pay the private school tuition of a grandnephew Thomas had “raised as a son.” Now it has been revealed that Ginni Thomas had secretly been paid $25,000 for unspecified work for a right-wing group that filed an amicus brief in Shelby County v. Holder, in which Thomas later wrote a concurring opinion that would help promote white supremacy.
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To make this final transaction even more suspicious, the payment to Ginni Thomas was done at the behest of Federalist Society head Leonard Leo through Trump activist Kellyanne Conway. The unrepentant Leo defended his dead drop financing, saying, “Knowing how disrespectful, malicious and gossipy people can be, I have always tried to protect the privacy of Justice Thomas and Ginni.” Leo, a lawyer himself, seems to have forgotten that the “privacy” of public figures, such as justices of the Supreme Court, does not extend to where and from whom they receive outside income.
As of this writing, neither Thomas nor his supposed boss, Chief Justice John Roberts, has addressed Thomas’s extracurricular enrichment beyond Thomas lamely mentioning that unnamed “friends” told him after he took the bench that these gifts need not be reported. Given who his friends seem to be, that is not at all surprising.
Unless Thomas and his wife failed to pay taxes on all this largesse, it is unclear, even unlikely, that they have done anything illegal. But what Justice Thomas has done is establish that at his core he is what no judge or justice—or ordinary citizen for that matter—should be.
When a trial witness is sworn in, to establish veracity, he or she is asked to “tell the truth, the whole truth, and nothing but the truth.” Thomas has clearly failed to do the second and may well have violated the third as well.
This is not the first time that Clarence Thomas’s truthfulness has been called into question. During his Senate confirmation hearing in 1991, in the face of accusations of sexual misconduct, he came out swinging, a tactic also employed to good effect by Brett Kavanaugh. He loudly and fiercely called the hearings a “high tech lynching,” accusing Anita Hill and others of fabricating stories of crude, unwanted advances. (At least he did not say she was “not his type.”) As with Kavanaugh, witnesses who spoke of similar behavior were vilified.
It is not an accident that most legal scholars of every ideology recognize that the appearance of impropriety can be every bit as damaging to the rule of law as actual malfeasance. It is ironic that conservatives like Leonard Leo have spent decades trumpeting their devotion to this very same rule of law, denouncing those on the left for making up their own rules, and upbraiding “activist” judges who interpreted the Constitution in a manner they did not like. Now that they have succeeded in taking control of the Supreme Court, and by questionable means, Leo and his fellow travelers are oddly silent about a judiciary run amok.
If conservatives have grown shy about discussing ethical issues, others have not. The question is, what can they do about it?
Many have proposed a code of ethics for Supreme Court justices, but even in the unlikely event one could be fashioned and applied, in the current political environment it would be next to worthless.
Who would enforce it?
Not Congress. They regularly dodge dealing with the Court’s failings by evoking “separation of powers,” conveniently forgetting that there should be “checks” as well as “balances.” Nor could enforcement be assigned to the executive, since there is an obvious conflict in the Department of Justice pursuing charges against judges before whom it regularly has dealings.
That leaves putting the judiciary in charge of policing itself, which it simply will not do. It has also recently come to light that Chief Justice Roberts’s wife made more than ten million dollars in “consulting,” recruiting lawyers to work at major law firms. As questionable as is earning money off her husband’s name and position—unless one is sufficiently naïve as to believe that the firms engaging her would have paid her that much regardless—that a number of them have had or will have business before the Court adds an extra layer of malodor. Roberts, of course, claimed neither he nor his wife had done anything wrong, and so, assigning the enforcement of ethical standards to the chief justice would be like hiring Bonnie and Clyde as bank guards.
That leaves impeachment, which has become the Constitution’s most toothless means of controlling excesses by public officials. If Republican senators were unwilling to vote guilty for a man who encouraged and then precipitated an attack on the Capitol in which their own lives were in danger, they are hardly likely to convict Supreme Court justices of blithely lining their pockets in violation of the public trust.
In the end, there is only one solution and that is an aroused electorate. Although there have been some recent signs of greater engagement by American voters, the United States is notorious for having lamentably low turnout rates in even the most important elections. If the government is to change, the willingness to participate in choosing that government must change as well.
The day after the Constitution was approved in 1787, a woman asked Benjamin Franklin what form of government the nation would have. “A republic,” Franklin replied, “if you can keep it.”
With the government abdicating their responsibilities, that task falls to the people. One can only hope they are up to it.
— Lawrence Goldstone’s latest book is “Not White Enough: The Long, Shameful Road to Japanese American Internment.”