December 8, 2023

Did anyone here know that Clarence Thomas rubs elbows with the rich and famous? I certainly didn’t, and even after reading ProPublica’s “exposé” on the subject, I’m not sure it matters — much, anyway. Essentially, while ProPublica’s deluge of detail between the Supreme Court justice and billionaire Harlan Crow raises questions about Thomas’ declared preferences for simpler pleasures, it never actually connects any dots to actual or implied corruption.

Basically, it smells like class warfare, and not a lot else. Here’s what the article says about Crow:

Crow has deep connections in conservative politics. The heir to a real estate fortune, Crow oversees his family’s business empire and recently named Marxism as his greatest fear. He was an early patron of the powerful anti-tax group Club for Growth and has been on the board of AEI for over 25 years. He also sits on the board of the Hoover Institution, another conservative think tank.

A major Republican donor for decades, Crow has given more than $10 million in publicly disclosed political contributions. He’s also given to groups that keep their donors secret — how much of this so-called dark money he’s given and to whom are not fully known. “I don’t disclose what I’m not required to disclose,” Crow once told the Times.

Crow has long supported efforts to move the judiciary to the right. He has donated to the Federalist Society and given millions of dollars to groups dedicated to tort reform and conservative jurisprudence. AEI and the Hoover Institution publish scholarship advancing conservative legal theories, and fellows at the think tanks occasionally file amicus briefs with the Supreme Court.

Well, that generally sounds like … every other politically active billionaire on Forbes’ list, on both sides of the aisle. This is how ProPublica purports to show how it influenced Thomas’ judicial work:

On the court since 1991, Thomas is a deeply conservative jurist known for his “originalism,” an approach that seeks to adhere to close readings of the text of the Constitution. While he has been resolute in this general approach, his views on specific matters have sometimes evolved. Recently, Thomas harshly criticized one of his own earlier opinions as he embraced a legal theory, newly popular on the right, that would limit government regulation. Small evolutions in a justice’s thinking or even select words used in an opinion can affect entire bodies of law, and shifts in Thomas’ views can be especially consequential. He’s taken unorthodox legal positions that have been adopted by the court’s majority years down the line.

Yes, it appears that the argument being offered in this paragraph is that Crow turned Thomas into [checks notes] someone who’s skeptical of the reach of agency law.

Okay, I’ll let you laugh a bit before continuing.

The case that ProPublica insinuates that Crow influenced was a follow-up to regulatory limits he authored in Brand X. Thomas now thinks those limits are too generous and too reliant on a misreading of Chevron, a topic on which Thomas has long been skeptical. It’s the type of judicial fine-tuning that wouldn’t raise an eyebrow in most circumstances, and certainly not if a conservative jurist “evolved” to change his/her mind in a direction that favored the bureaucratic state.

Supposedly, this is the fruit of twenty years of lobbying by Crow in offering his friend Clarence opportunities to join him and others on “luxury vacations” that include yacht trips to “far-flung locales,” private jet flights, and space with “Crow’s powerful friends at the billionaire’s private resort.” And if all Crow got out of that was a mild retrenching on Brand X — which is the only specific case ProPublica cites — let’s just say that Crow may not be as good a businessman as you’d think.

That’s not to say that the practice is ideal. Apparently, Thomas didn’t disclose these as gifts, especially the lodging and travel, which ProPublica argues is required, or at least it is now:

Justices are generally required to publicly report all gifts worth more than $415, defined as “anything of value” that isn’t fully reimbursed. There are exceptions: If someone hosts a justice at their own property, free food and lodging don’t have to be disclosed. That would exempt dinner at a friend’s house. The exemption never applied to transportation, such as private jet flights, experts said, a fact that was made explicit in recently updated filing instructions for the judiciary.

Two ethics law experts told ProPublica that Thomas’ yacht cruises, a form of transportation, also required disclosure.

“If Justice Thomas received free travel on private planes and yachts, failure to report the gifts is a violation of the disclosure law,” said Kedric Payne, senior director for ethics at the nonprofit government watchdog Campaign Legal Center. (Thomas himself once reported receiving a private jet trip from Crow, on his disclosure for 1997.)

The experts said Thomas’ stays at Topridge may have required disclosure too, in part because Crow owns it not personally but through a company. Until recently, the judiciary’s ethics guidance didn’t explicitly address the ownership issue. The recent update to the filing instructions clarifies that disclosure is required for such stays.

This seems like a more fair complaint, although it’s about process rather than corruption — and the ProPublica article leans heavily into the latter with no payoff at all. In that sense, it’s a bait-and-switch that undermines the legitimate questions of transparency and judicial decorum. Not to mention the fact that ProPublica may be wrong about what actually is required:

Since this all sounds like “personal hospitality,” then it may not need to be disclosed or reported at all. The reporting requirements seem to apply for business-related travel and lodging, ie, speaking engagements and the like. One can posit that the rules should cover “personal hospitality,” and there may be an argument for it, but … that’s really not what ProPublica intended or accomplished today. And given all of the attacks on Thomas over the years, it sounds aaaawwwwwfuuuullly familiar, as David Harsanyi writes at The Federalist:

While the purpose of ProPublica’s piece is to frame all this as unethical, it offers not a single substantive instance of anything remotely approaching a conflict of interest. No cases involving Harlan Crow have ever reached Thomas. And there are no examples of Thomas having changed his positions to accommodate anyone. ProPublica takes an embarrassing stab at making this contention by noting that Thomas’s criticism of an old Chevron-related case means that he’s adopted a concept “newly popular on the right, that would limit government regulation.” Yes, limiting government regulation is a wholly newfangled idea within Federalist Society circles. Pulitzer on the way.

But, of course, leftists can’t believe anyone has a good-faith position in opposition to their own. A person can either be bought by nefarious moneymen, be misled by nefarious moneymen, or be nefarious themselves. Those are the choices.

You want to write about Thomas’ vacations, fine. A Supreme Court justice is a public figure. The real story here is a boring one. Then again, the decades-long smearing of Thomas is unprecedented in modern American history. And with renewed efforts to delegitimize any court bound to constitutional limits — which is what all this is really about — it’s only going to get worse.

Indeed. Even to the extent that this raises some legit questions about disclosure and boundaries, it only raises them with one particular justice. Do other Supreme Court justices disclose all of their private connections to the wealthy, assuming they have any? The existence of the “personal hospitality” exception makes it sound like it’s hardly unique to Thomas. What about other constitutional officers in the federal government? It might be interesting to find out, and in a sidebar, ProPublica says they plan to delve further into such matters with other SCOTUS justices. Yeah … we’ll see, but don’t hold your breath.