Supreme Court Justice Clarence Thomas is an adamant believer in the original intent of the Constitution, so much so that the two centuries between its adoption and our own time might as well not have happened. For him, American law is frozen in amber like a fossilized centipede from the Pleistocene era.
He's clearly a fan of the Founders, but in the wake of revelations about his casual approach to his ethical and legal responsibilities as Supreme Court justice, he might benefit from paying closer attention to what they actually said. A good place to start would be George Washington in his 1796 Farewell Address, when he famously remarked that, "I hold the maxim no less applicable to public than to private affairs, that honesty is always the best policy."
That's one originalist principle that seems to have escaped Justice Thomas' notice.
The Ethics in Government Act of 1978 requires Supreme Court justices (and all federal judges) to fill out financial disclosure forms which, among other things, include the sources of income, gifts, reimbursements, many financial transactions, and certain financial interests of spouses. The rules are explicit, well known, and apply to almost every top official in the government.
There is a question on the form about spousal income, but it appears that Justice Thomas in all his years on the bench had never reported his wife's employment, and didn't do so until he retroactively amended his disclosure forms after being publicly exposed. For instance, when Justice Thomas filled out his form in the years between 2003 and 2007 he repeatedly checked the box marked "none," in spite of the fact that available public records show that his wife, Virginia, had earned nearly $700,000 from the Heritage Foundation in that period.
Unless Ginni Thomas was being paid in Monopoly money, "none" was not the right answer to the question.
Now, the New York Times reports that the forgetful justice may have missed a few more things. The article shows that Justice Thomas has reported no reimbursements for travel paid by real-estate magnate, conservative funder, and close friend Harlan Crow, in spite of indications that the justice's travels and flights by Crow's private plane bear a remarkable similarity to each other on many occasions, including for get-togethers with Crow himself.
According to the Los Angeles Times, Crow began flying Thomas around as early as 1997, when he brought him to one of the notorious Bohemian Grove all-male retreats for powerful insiders.
Justice Thomas has not reported any gifts at all since 2004, although, as the LA Times reported, he received over $42,000 worth in the six years before (the most among the justices).
Is there fire near all this smoke? We don't know, and Clarence Thomas isn't talking. This is not a trivial matter. The disclosure laws are a big deal; violators are subject to civil action and criminal prosecution and can go to jail. These serious financial disclosure issues merit significant examination and, if sufficient evidence of misconduct exists, the Judicial Conference of the United States must refer violations to the Attorney General, as the law requires.
But at the same time, there is another set of issues that run parallel to the disclosure problems and are equally troubling. Those involve questionable ethical behavior that violates the Code of Conduct governing federal judges, which clearly states that federal judges should not directly engage in fundraising activity, no matter how benign, or engage in political activity, or do anything that creates even the perception of bias, favoritism, or partiality.
Many people are surprised to learn that the code, which covers every other federal jurist, doesn't actually apply to Supreme Court justices. There are no mandatory ethical constraints on the highest court in the land; for the justices, the code is merely aspirational, a source of "guidance." The Supreme Court of the United States, whose authority is rooted in perceptions of integrity and probity, has the lowest compulsory ethical standards in the government.
It's clear, though, that voluntary compliance simply isn't working anymore. Now, we have Justices Thomas and Antonin Scalia attending political strategy and fund-raising conferences hosted by the ultra-conservative billionaire Koch brothers, and allowing their names to be used to draw attendees. Justice Samuel Alito has headlined fundraisers for right-wing groups like the Heritage Foundation and American Spectator magazine. Justice Thomas' friend Harlan Crow has given him a $19,000 Bible, provided his wife with a half-million dollars to start a right-wing group, and generously funded a museum project of great personal importance. The American Enterprise Institute (on whose Board Crow sits) also lavished Thomas with a $15,000 sculpture, ironically of Honest Abe Lincoln, conveniently bestowed at the same time they had amicus briefs before the Court.
We believe two things must now happen. First, Justice Thomas' disclosure issues must be fully investigated by the Judicial Conference, which has statutory jurisdiction and administrative responsibility. Questions need to be asked and answered, and either the air cleared or the case referred to the Attorney General, as the law requires.
Second, Congress should pass legislation mandating that the Code of Conduct that applies to all other federal judges should also apply to the Supreme Court, and that procedures should be established to enforce those standards.
George Washington thought that honesty was the best policy, but it is increasingly apparent that for some members of the Supreme Court, that's one founding principle they feel free to ignore.