Drew Angerer

Sorry everyone, but Clarence Thomas can take undisclosed money from whomever he wants and there is little to be done about it

April 16, 2023
3 mins read
  • Clarence Thomas is facing impeachment calls following a report on his real estate dealings with a GOP donor.
  • But Supreme Court experts told Insider there is no chance the conservative justice will be removed.
  • The Supreme Court has little regulatory oversight and few routes for disciplining its judges.

Supreme Court Justice Clarence Thomas is facing renewed scrutiny following the revelation this week that the powerful judge sold his childhood home to GOP mega-donor Harlan Crow — and never disclosed the sale.

Judiciary ethics experts told Insider the bombshell ProPublica report left them “shocked” and “disturbed.” But don’t expect the SCOTUS lifetime appointee to face any real repercussions as a result of his growing list of ethics concerns, at least, not in this political climate, they said.

The outlet on Thursday reported that Thomas sold a Savannah, Georgia property to Crow, a longtime friend and powerful right-wing donor, for $133,363 in 2014, marking the first known, but never disclosed, instance of direct cash flow between the two.

“The idea that someone is shoveling money to a Supreme Court justice with no disclosure is highly disturbing,” Clare Pastore, a professor of the practice of law at USC Gould School of Law and an expert in legal ethics, told Insider. 

The ProPublica report comes one week after the outlet reported that Thomas has been accepting, and also failing to disclose, several luxury vacations from Crow for years. While Thomas defended the undisclosed trips by citing an ill-defined “personal hospitality” exemption included in disclosure requirements, the real estate revelation may be harder to explain away. 

Federal law requires government employees, including Supreme Court justices, to report most real estate transactions worth more than a thousand dollars. 

“It’s reasonable to say we would expect the most powerful judges to be following federal law,” Scott Lemieux, a professor of political science at the University of Washington and an expert in constitutional law, told Insider.

ProPublica also reported that Thomas’ 94-year-old mother still lives in the home, which Crow poured tens of thousands of dollars into for renovations after acquiring the property. The Republican donor told the outlet he hoped to turn the property into a museum dedicated to Thomas’ legacy. 

Four ethics law experts told ProPublica that Thomas likely violated a federal disclosure law enacted in the wake of Watergate, sparking renewed calls for his resignation, with some Democratic lawmakers raising the topic of impeachment. 

But legal experts told Insider that talk of Thomas’ removal is essentially a nonstarter.

Political parties are far too polarized

Supreme Court justices, who are appointed to life terms and are among the most powerful people in the country, face few challenges to their positions and little discipline for missteps, experts said.

“One issue we have is that the only discipline of Supreme Court justices is the extreme form of impeachment or removal,” Lemieux said. “Clarence Thomas could shoot someone on Pennsylvania Avenue and this Senate wouldn’t remove him.”

Similar to the process of impeaching a president, a Supreme Court justice can only be removed from the bench if a simple majority of the House of Representatives first votes to impeach, and then, two-thirds of the Senate, a supermajority, votes to convict.

The impeachment of a Supreme Court justice is also nearly unprecedented. Only once before have lawmakers voted to impeach a justice on the top court, and he was ultimately not convicted, holding on to his seat on the bench. In 1804, the House voted to impeach Justice Samuel Chase for “refusing to dismiss biased jurors and excluding or limiting defense witnesses in two politically sensitive cases,” according to the Senate website.

But because of near-record levels of polarization among party lines today, and a Democrat in the White House who would have the power to pick a replacement, experts said there’s no chance Thomas will face a legitimate threat to his seat anytime soon. 

Republican lawmakers thus far have rushed to defend Thomas in the wake of the ProPublica reports.

Beyond impeachment, Supreme Court justices face no other obvious disciplinary measures, experts said. 

“We don’t have those mechanisms with life-tenured justices, so that’s why their behavior on the bench is even more important than politicians on whom we do have some checks,” Pastore said. 

Supreme Court Associate Justice Clarence Thomas attends the ceremonial swearing-in ceremony for Amy Coney Barrett to be the U.S. Supreme Court Associate Justice on the South Lawn of the White House October 26, 2020. Tasos Katopodis/Getty Images© Tasos Katopodis/Getty Images

The court could soon put internal checks in place

The impeachment dead-end and lack of additional discipline measures mean Thomas could theoretically continue to take undisclosed sums of money from whomever he wants with few real-life consequences.

But Lemieux said he thinks the controversies plaguing the court’s level of public trust, which has been at an all-time low in recent months even before this bout of Thomas-focused crises, will ultimately lead to internal policing and behavioral changes within the top court. 

While lower courts are bound by a code of ethics, the Supreme Court has no such regulatory device, nor does it have any superior courts to oversee it. But Pastore predicted this could be the impetus toward the court eventually adopting such a code or even subjecting itself to the existing code of ethics that applies to other judges. 

“I think it’s quite likely we get some movement in one of those ways,” she told Insider. “That would be a good step in the right direction.

The Washington Inquirer Editor

20 years in media business

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