In recent weeks, Sen. Ron Wyden (D-Ore.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.) took an unusual step: Both argued that the Biden administration should ignore unjust court rulings like Judge Matthew Kacsmaryk’s nationwide injunction banning the abortion drug mifepristone. The idea struck many as too dangerous to even contemplate — myself included. But in truth, ignoring unjust rulings would hypothetically be the proper response to tyranny (see the Boston Tea Party). The nagging question has always been: How can we tell when it’s time to take that drastic step?
Justice Clarence Thomas’ continued presence on the U.S. Supreme Court is one plausible answer.
Far from being the self-portrayed everyman who parks his RV in Walmart parking lots, Thomas has been living lavishly for quite some time. Every week, we learn more about how billionaire Republican donor Harlan Crow showered Thomas with extravagant and unreported gifts. Those include chartered flights and yachts in Indonesia, the purchase and maintenance of Thomas’ childhood home (while his mother lives there rent free) and regular use of Crow’s private jet.
Conservatives have been quick to defend the two as just “friends.” Thomas’ behavior, however, is quite irregular. None of the other justices appear to have been the beneficiaries of such largesse. Moreover, none has blatantly flaunted the federal requirement to report them. As far as we know, Thomas is singular in his malfeasance; he is therefore singular in the disgrace and suspicion he has now brought upon the Court.
Put simply, Crow compromising Thomas’ independence is an existential threat to the rule of law.
Justice Robert Jackson once remarked about the Supreme Court: “We are not final because we are infallible, but we are infallible only because we are final.” I would add: They are entitled to be final only because we believe they exercise independent judgment. Notice that I did not say “impartial.” We know that Justice Samuel Alito prefers anti-choice litigants; that Justice John Roberts prefers “colorblindness” over racial equity and that Justice Neil Gorsuch will block any attempt by workers to advocate for better working conditions. We despise them for it, but we obey their decisions because we hold fast to the idea that they are independent.
How can that belief be justified knowing what we do about Thomas? We may never know just how much influence Crow bought from Thomas over the many years of their “friendship,” but as Thomas’ other friend, conservative Juan Williams, noted in his recent column, “The real problem is that none of us can ever again get away from wondering.”
Thomas has slowly eroded our confidence. We previously learned of Crow’s other gifts to Thomas more than a decade ago. It was clear then that Crow had direct connections to conservative litigants. He has served on the board of the American Enterprise Institute (AEI) since 1996, and AEI regularly submits amicus briefs to the Court with the goal of reshaping administrative and constitutional law. Thomas, playing his part, regularly sides with those entities in his opinions — sometimes going so far as to write gratuitous concurrences saying that the results were not conservative enough, mimicking the most extreme positions offered by the parties.
It was clear all those years ago that Thomas was duty-bound and legally required to report those gifts and preserve his independence by recusing himself from cases where his “friends” had a stake. Yet, he did not.
Thomas could have redeemed himself by ceasing his questionable behavior. Instead, when caught again by ProPublica, he implausibly claimed he did not know that he had to report these “personal gifts.” Soon after, we learned about Crow caring for Thomas’ mother, a matter he has still not addressed. He has knowingly continued to make a mockery of his ethical obligations, making it impossible to use ignorance as an excuse.
With Thomas’ latest betrayal, the curtain has been pulled back and we can no longer blindly trust his or the Court’s independence. That is why the Alliance for Justice has called for Thomas to resign. He has a long record of dismissing the importance of disclosure. He violated the law by hiding or misrepresenting his financial relationships. Worst still, he seems to have accepted favor, acclaim and riches for carrying out his work. This is wrong — we all know it.
Whether Thomas resigns or not, Roberts and the U.S. Courts Judicial Conduct Committee must investigate Thomas’ conduct and the ethics of the Court. This is an obvious breach of judicial norms and requires a response from the Chief Justice. And while he is at it, Roberts must also reverse his position and accept Durbin’s call to testify before the Senate. Congress has a constitutional responsibility to check the power of this Court. Separation of powers is therefore no excuse for refusing to testify on a matter so supremely important to the functioning of our democracy.
In the meantime, Congress must hold not just one hearing but several, including one in which Thomas and several others are called to testify. The public deserves to know the extent to which Thomas’s judgment was influenced by those “friendships,” as well as the extent to which he benefitted. Finally, the Department of Justice Public Integrity Section must investigate any wrongdoing and undue influence and assess any appropriate civil and criminal penalties against Thomas.
Each of these investigations is essential to ensuring the integrity of the Court and defending the rule of law. Our democracy faces dire consequences if Thomas gets aways with this. In the absence of accountability, Wyden and Ocasio-Cortez’s advice may become more widely appealing because a corrupt Court is as good as no Court at all. If that is too dangerous to contemplate, the solution should not be. Thomas must go.
Rakim Brooks is a public interest appellate lawyer and the president of Alliance for Justice. As a contributor to Democracy Docket, Brooks writes about issues relating to our state and federal courts as well as reforms to our judicial systems.