Unlike other members of the federal judiciary, U.S. Supreme Court justices are not bound by a comprehensive set of ethics rules. They are expected to police themselves. But that doesn't always happen. A New York Times investigation into the financial relationship between Justice Clarence Thomas and real estate magnate Harlan Crow suggests that Thomas crossed ethical lines by receiving gifts and arranging donations by Crow to a favorite charity. Nothing is more important to public confidence in the judiciary than justices who are free from real or perceived conflicts of interest. There should be clear ethics rules even for the Supreme Court.
Crow has donated close to $5 million to Republican campaigns and conservative groups, and his activism has included sitting on boards of two conservative organizations involved in submitting friend-of-court briefs in cases before the Supreme Court. The New York Times detailed how Crow has been a benefactor to Thomas. He reportedly provided $500,000 to start Liberty Central, a tea party-related group founded by Thomas' wife, and he gave Thomas a Bible that once belonged to Frederick Douglass. He supported a library project dedicated to Thomas. The newspaper also disclosed occasions when Thomas likely traveled on Crow's planes and yacht, and gatherings when the two men spent time together at Crow's Adirondacks estate and his camp in Texas. Thomas did not fully detail those trips on financial disclosure forms.
Crow's most generous philanthropy toward a Thomas-connected charity was the multimillion-dollar purchase and restoration of the cannery where Thomas' mother was a crab picker in Pin Point, Ga., the remote community where Thomas was born. Thomas apparently was an intermediary, putting Crow in touch with the owner of the cannery.
Federal judges are not supposed to solicit money for charity, according to the code of conduct for judges, since those relationships can cause a judge to feel indebted to someone. But because the code of conduct is enforced by judges who are not as high ranking as Supreme Court justices, that doesn't apply to the Supreme Court. That means justices are not subject to the investigation and sanctions that other judges face for violating ethical standards.
Since 2004, when a newspaper reported that Thomas had taken gifts worth more than those received by any other justice, he has not reported another gift. He has not disclosed the millions of dollars that Crow spent on the cannery museum, since the money didn't go to or through Thomas.
More than 100 law professors have called on Congress to apply the code of conduct to Supreme Court justices and establish a review procedure when justices decide not to recuse themselves. Thomas' relationship with Crow reinforces the urgency of taking that step to ensure an independent court.