Justice Clarence Thomas is an ethics problem in a black robe. Just eight months after the story of Thomas’ attendance at a Koch-sponsored political fundraiser, we learn that Thomas doesn’t just do unethical favors for wealthy right-wing donors — they also do expensive favors for him.
Leading conservative donor Harlan Crow, whose company often litigates in federal court, donated $500,000 to allow Thomas’s wife to start a Tea Party group and he once gave Thomas a $19,000 Bible that belonged to Frederick Douglass. The American Enterprise Institute, a conservative think tank which frequently files briefs in Thomas’ Court, also gave Thomas a $15,000 gift.
If this sounds familiar, it’s because America has seen this movie before. Indeed, the Thomas scandal is little more than a remake of the forty year-old gifting scandal that brought down Justice Abe Fortas. Like Thomas, Fortas liked to associate with wealthy individuals with potential business before his Court. And like Thomas, Fortas took inappropriate gifts from his wealthy benefactors.
Fortas’ questionable gifts first came out when President Johnson nominated him for a promotion to Chief Justice of the United States in 1968. Fortas had accepted $15,000 to lead seminars at American University — far more than the university normally paid for such services — and the payments were bankrolled by the leaders of frequent corporate litigants including the vice president of Phillip Morris. Fortas survived this revelation, although his nomination for the Chief Justiceship was filibustered into oblivion.
Just a year later, the country learned that Fortas took another highly questionable gift. In 1966, one year after Fortas joined the Court, stock speculator Louis E. Wolfson’s foundation began paying Fortas an annual retainer of $20,000 per year for consulting services. Fortas’ actions were legal, and he eventually returned the money after Wolfson was convicted of securities violations and recused himself from Wolfson’s case, but the damage to Fortas — and the potential harm to the Supreme Court’s reputation — were too great. Fortas resigned in disgrace.
It is difficult to distinguish Fortas’ scandal from Thomas’. Like Fortas, Thomas accepted several very valuable gifts from parties who are frequently interested in the outcome of federal court cases. One of Thomas’ benefactors has even filed briefs in his Court since giving Thomas a $15,000 gift, and Thomas has not recused himself from each of these cases.
Of course, Thomas is also the least likely Justice to actually follow the command of precedent. Thomas embraces a discredited theory of the Constitution which would return America to a time when federal child labor laws were considered unconstitutional. His fellow justices criticize him for showing “utter disregard for our precedent and Congress’ intent.” Even ultra-conservative Justice Antonin Scalia finds Thomas’ approach to the law too extreme — in Scalia’s words “I am a textualist. I am an originalist. I am not a nut.”
But Thomas’ disregard for what has come before him changes nothing about the precedent he faces. If Abe Fortas had to resign his seat, so too should Clarence Thomas.