Legal scholar: Clarence Thomas “corruption” almost “certainly unlawful and ethically reprehensible”

A deep dive into Supreme Court Justice Clarence Thomas' finances revealed a secret complaint, or a subtle request, he made to a Republican Congressman about a pay raise, threatening that if lawmakers didn’t act, “one or more justices will leave soon,” according to a ProPublica investigation. 

This marks the most recent revelation in a series of ProPublica reports this year, delving into Thomas' contentious financial history – one with several instances of the Supreme Court justice accepting undisclosed gifts and money from wealthy friends who got a like-minded jurist on the nation’s highest court.

Legal experts warn that Thomas’ actions raise “significant concerns” regarding the reality or appearance of conflicts of interest and abuse of his official position. Were he any other government official, or a member of most professions, his behavior would merit severe sanctions if not removal.

Thomas' willingness to receive such benefits, including trips and vacations which total in the millions of dollars, is almost “certainly unlawful and ethically reprehensible,”  Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon.

“We have never seen a situation like this before,” Gershman said. “Thomas could be removed from the Supreme Court for his misconduct but won’t be. He won’t leave voluntarily even if he doesn’t like the pay. He has lifetime tenure. His position appears to be to stonewall his detractors and continue to serve on the Court, serving without much distinction, but with considerable power.”

The documents and interviews in the ProPublica investigation provide a glimpse into how Thomas discussed his financial matters during a pivotal phase in his tenure when he started to cultivate strong relationships with wealthy benefactors. 

Nearly ten years into his tenure on the court, Thomas “had grown frustrated with his financial situation,” according to his friends, per ProPublica. He had taken on the responsibility of raising his young grandnephew, and his wife sought guidance on managing the new expenses. 

During this period, the Supreme Court justice, who was earning a salary of $173,600, which is equivalent to over $300,000 today, found himself in significant debt amounting to hundreds of thousands of dollars, the outlet reported. He was one of the “least wealthy members of the court” and actively explored avenues to make more money. In private discussions, Thomas consistently advocated for lifting the ban on justices giving paid speeches.

On one occasion, Thomas addressed his concerns about his salary with a Republican member of Congress on a flight home from a five-star beach resort in Sea Island, Georgia, where he gave a speech at an off-the-record conservative conference.

“I intend to look into a bill to raise the salaries of members of The Supreme Court,” a January 2000 letter from former U.S. Rep. Cliff Stearns, R-Fla., to Thomas reads. “As we agreed, it is worth a lot to Americans to have the constitution properly interpreted. We must have the proper incentives here, too.”

Despite Congress never lifting the ban on speaking fees or providing a significant pay increase to the justices, Thomas benefited in other ways, receiving gifts from friends and acquaintances, covering living expenses from private school tuition to vehicle batteries and tires. A group of exceptionally wealthy individuals further enriched his lifestyle offering free international vacations on the private jet and superyacht of Dallas real estate billionaire Harlan Crow.

The problem with Clarence Thomas’ “pattern of loans and gifts” is that it raises at least the appearance of a conflict of interest or impropriety if not real conflicts or impropriety, David Schultz, professor of political science at Hamline University, told Salon.

If he has accepted favors from individuals who have presented arguments before the Court, it unquestionably raises concerns about impartiality, Schultz explained. However, even if the favors are not from those involved in cases before the Court, there is a lingering question about undisclosed contributions. Is there now an “implied sense” that some might feel compelled to offer something to a Justice for “fair treatment” or consideration of a case?

“What all this raises is a concern of perhaps quid pro quo bribery or solicitation of a bribe,” Schultz said. “In the area of campaign finance reform and limits on political contributions, the Court has ruled that fear of corruption or the appearance of corruption is enough to justify limits on contributions and their disclosure. The Court has held here that there is a compelling governmental interest in assuring the public that elected officials are acting ethically.”

Accepting these gifts and favors and not disclosing them, even from non-parties, raises doubts in the public's perception about “the real impartiality and basis” upon which Thomas and the entire Court deliver their opinions, Schultz continued. Are decisions rooted in “facts and law,” or are they influenced by favoritism? 

“Once you have to ask that question one has an appearance of impropriety question that would force any federal judge except for the Supreme Court from hearing a case,” he added. “It might also lead to concerns of bribery or extortion.”

Thomas has also consistently voted against political contribution limits and disclosure laws for contributions, Schultz pointed out. This raises the question of Thomas doing so based on principle or because he has accepted gifts and favors and does not want laws that force such disclosure. Once you raise this question it produces the problem of questioning the basis of many of Thomas’ decisions, regardless of whether an interested party is before the Court.

There is an “overriding legal and ethical requirement” that judges behave impartially, Gershman said. This requirement is “critical to the integrity” of our justice system and provides the public confidence that judges behave “fairly” and remain uninfluenced by special favors from litigants that may skew a judge’s decision-making.

The federal statute 28 U.S.C. section 455, which applies to all judges including Supreme Court justices, requires that judges must disqualify themselves from proceedings “when their impartiality might reasonably be questioned,” Gershman said. 

It is obvious that Justice Thomas engaged for many years in what appears to “be a corruption of his judicial office” by secretly receiving huge financial favors and other benefits from a conservative billionaire donor, which he never reported on his financial disclosure forms, as required by law, Gershman continued. 

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“The donor either had cases pending before the Court or had a strong interest in how Thomas should decide certain cases,” Gershman said. “Regardless of whether Thomas was actually biased in this person’s favor (which is very difficult to prove), there is absolutely no question that the public would reasonably believe that Thomas’ impartiality would reasonably and strongly be questioned by that relationship. Given these circumstances, Thomas had to be either clueless, indifferent to his ethical responsibility, or dishonest.”

Realistically, in today’s political climate, there are “very few effective mechanisms” available to hold a Supreme Court justice like Thomas “legally or ethically accountable,” he added. While the Senate has the power to conduct hearings and summon the justice, Chief Justice Roberts recently rejected such efforts, refusing to appear before the Senate for questioning about Supreme Court ethics. Justice Samuel Alito even contends that he doesn't believe the Senate has the authority to question the justices.

In contrast, federal judges can be impeached and convicted, as some have in the past. The administrative agency overseeing federal courts can also investigate judges for alleged misconduct while the Justice Department has the authority to investigate a judge for violations of the law, such as taking bribes, making false statements or violating financial disclosure requirements.

If Thomas indeed believes his salary is too low, he can resign, Gershman said. But Thomas wants to have his “powerful perch” on the court and also “feather his nest by living a lavish lifestyle from lucrative gifts from rich people.”

“Thomas is clearly guilty of judicial misconduct based on his longstanding and secret relationships with these wealthy benefactors who have bestowed lavish benefits on him clearly to influence his judicial work and in turn receive special judicial favors from him,” Gershman said.