Way back in a distant time and place, my civic-minded third-grade teacher required us kids to memorize the names of all nine members of the U.S. Supreme Court. We knew instinctively why she’d assigned that homework. The venerable bench was inherently so worthy of our respect that it behooved us to know who wore the robes.
Seven years later, in 1968, an associate Supreme Court justice named Abe Fortas was caught breaking bad. One of his law firm partners had arranged for Fortas to teach summer school at American University, and some of the law firm’s clients paid his $15,000 stipend. Those clients had cases that might land in the Supreme Court – a potential conflict of interest. Then, in 1969, Fortas took another hit. Word got out that he’d taken $20,000 from a foundation headed by a guy indicted for securities fraud.
So Fortas did the decent thing, to protect the credibility of the highest court in the land: He resigned.
Imagine that. Half a century ago, miscreants in high places were often capable of feeling shame. It’s right there in the Merriam-Webster Dictionary; shame is defined as “a feeling of guilt, regret or sadness that you have because you know you have done something wrong.”
Which brings us to the new revelations about shamelessly corrupt Clarence Thomas.
ProPublica, the terrific investigative journalism site, has the goods on Thomas’ longstanding sweetheart deal with Republican megadonor Harlan Crow, a real estate mogul (and collector of Nazi memorabilia, including swastika-enbroidered napkins) whose companies constantly petition the high court. Check this out:
“For more than two decades, Thomas has accepted luxury trips virtually every year from the Dallas businessman without disclosing them, documents and interviews show. A public servant who has a salary of $285,000, he has vacationed on Crow’s superyacht around the globe. He flies on Crow’s Bombardier Global 5000 jet. He has gone with Crow to the Bohemian Grove, the exclusive California all-male retreat, and to Crow’s sprawling ranch in East Texas. And Thomas typically spends about a week every summer at Crow’s private resort in the Adirondacks.
“The extent and frequency of Crow’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.
“These trips appeared nowhere on Thomas’ financial disclosures. His failure to report the flights appears to violate a law passed after Watergate that requires justices, judges, members of Congress and federal officials to disclose most gifts…”
But at a time when public confidence in the Supreme Court is at an historic low – thanks in great measure to Thomas – will he feel compelled to resign, like Abe Fortas did?
I can already hear you rage-laughing.
Of course he won’t quit, because ethical norms are dead – and feeling shameful for one’s misdeeds is so last century.
If shame was still a thing, Thomas would’ve stepped down years ago. In defiance of the judicial code of ethics that warns against even perceived conflicts of interest, he has refused to recuse himself from 2020 election-related cases despite the fact that his nutball wife Ginni rallied with Stop the Steal zealots and emailed state lawmakers to overturn Joe Biden’s victory. Thomas has refused to recuse himself from gay rights cases (Ginni is on record railing against “transsexual fascists”). Thomas has refused to recuse himself from national security cases (Ginni is on record railing against “the Deep State”). Thomas refused to recuse himself from a Muslim travel ban case (Ginni’s consulting firm gets money from a think tank that urged the justices to uphold the ban).
So in all likelihood, he will blow off the ProPublica blockbuster and it will all blow over. And because there’s no Senate appetite for impeaching him, he’s basically untouchable. Let’s face it, why should he hang his head and hold himself accountable in an era when wrongdoers in public life never feel the need to apologize for anything, let alone express any sense of shame? As veteran Washington political analyst Norman Ornstein recently lamented, in our country today “you deaden your senses and you coarsen your culture and now anything goes.”
It’s beyond the scope of this column to dig into why we inhabit a post-shame country. I suppose one big reason is our long descent into polarized tribalism. There’s no percentage in ‘fessing up and stepping down when you’ve got a built-in base of supporters who will kick ass and raise money on your behalf. Thomas can play the victim for the MAGA mob without breaking a sweat. And the ousted MAGA president, to whom Ginni remains in thrall, continues to set the pace by staying quintessentially shame-free. (After the criminal defendant was arrested on Tuesday for 34 alleged felonies, he boasted on social media that, as a supposed victim of persecution, he had experienced perhaps “the Best Day in History.”)
Abe Fortas resigned in ’69 because there was an unspoken consensus that certain moral and ethical lines should not be crossed. How nice It would be, here in ’23, if the Supreme Court drew some lines of its own. The official Code of Judicial Conduct, embedded in federal law, specifically states that “any justice, judge, or magistrate judges of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” – but, as you may know, the Supremes exempt themselves from that code.
They have no rules governing conflict of interest. They police themselves, which of course means that in practice they don’t. They institutionalize shamelessness. So Thomas gets another pass from his peers as well. In a statement earlier today, he said that he has been merely enjoying his patron’s “personal hospitality,” and that it was OK with his fellow justices.
Something must be done about this guy. The Senate Judiciary Committee, exercising oversight, should investigate whether Thomas broke the laws requiring the disclosure of gifts – and subpoena Thomas to explain himself. Perhaps at minimum that would some put heat on the court to craft its own ethics rules.
But given our norm-free reality, there’s no way we can expect a serial sleaze like Thomas to somehow morph into Dostoevsky. The Russian novelist once wrote that “so long as I was still a human being and not nothingness, I was alive and so could suffer…and feel shame at my actions.”
Clearly he never cruised with a sugar daddy on a superyacht.