Opinion: The Clarence Thomas revelations are the last straw. It’s time for Congress to act

Editor’s Note: Julian Zelizer, a CNN political analyst, is a professor of history and public affairs at Princeton University. He is the author and editor of 25 books, including the New York Times best-seller, “Myth America: Historians Take on the Biggest Lies and Legends About Our Past” (Basic Books). Follow him on Twitter @julianzelizer. The views expressed in this commentary are his own. View more opinion on CNN.

The most recent ProPublica story about Justice Clarence Thomas is a powerful reminder that we need a code of conduct for the Supreme Court. Although surely most Americans would hope that justices can be trusted to act ethically, Thomas’ behavior suggests otherwise.

The ProPublica report revealed Thomas’s troubling ties to Harlan Crow, a major Republican donor. According to the report, Thomas has enjoyed a number of benefits over the past 20-odd years of their relationship, including cruises on Crow’s 162-foot yacht, stays at Crow’s properties in the Adirondacks and East Texas, and use of Crow’s private jet. According to the report, “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.”

On Friday, Thomas said he did not disclose the luxury travel paid for by Crow, who he described as a family friend, because he was advised at the time that he didn’t have to. The Judicial Conference, the courts’ policymaking body, has only recently adopted broader guidelines when it comes to disclosing free trips, meals and other gifts and Thomas said it was his “intent to follow this guidance in the future.”

Regardless, the revelations about Thomas’ many luxury trips have raised inevitable questions about his judicial independence. It doesn’t help that the ProPublica report comes after Thomas failed to recuse himself from cases linked to causes for which his wife has advocated. Given the Supreme Court’s ongoing crisis of legitimacy, this latest report is yet another blow to both the highest court and the republic.

Somewhere, the late Supreme Court Justice Abe Fortas must be shaking his head, wondering how Thomas is getting away with all of this. In 1968, President Lyndon B. Johnson nominated Fortas to be chief justice. But Republicans and Southern Democrats filibustered the nomination, and used his acceptance of a $15,000 honorarium from American University — a practice that was not unheard of at the time — against him. Fortas then withdrew his name from consideration. (Another charge later emerged that Fortas took a $20,000 retainer from a Wall Street financier, who was later imprisoned for securities violations. Fortas, who denied having done anything wrong, resigned from the Supreme Court in 1969).

But there are few signs that Thomas would willingly step down over these revelations. Ultimately, what’s even more troubling than his behavior is the fact that the Supreme Court does not have its own code of conduct, even though there is one that applies to other federal judges. And if the high court doesn’t take the steps to adopt one on its own, Congress should act swiftly to pass legislation requiring justices to adhere to ethical standards.

In 2019, Supreme Court Justice Elena Kagan said Chief Justice John Roberts was seriously considering an ethics code. But four years later, a code still hasn’t been adopted. Roberts, an institutionalist by nature, seemed lukewarm about the idea, claiming that the justices already “consult the code of conduct” that exists for other federal judges, which calls for the avoidance of even the “appearance of impropriety.”

In February, the American Bar Association threw its support behind the idea, warning that “the absence of a clearly articulated, binding code of ethics for the justices of the court imperils the legitimacy of the court.”

And just a few days ago, Senate Democrats — including Maryland’s Chris Van Hollen and Rhode Island’s Sheldon Whitehouse — tried to propose language in next year’s funding bill that would require the Supreme Court to create a transparent process for determining when recusals and ethics investigations were needed.

“It is unacceptable,” Van Hollen said, “that the Supreme Court has exempted itself from the accountability that applies to all other members of our federal courts, and I believe Congress should act to remedy this problem.”

Numerous top Republicans, however, have opposed the plan or expressed their hesitations. As South Dakota Sen. John Thune said in 2022, “I’m uncomfortable with the idea of becoming overly prescriptive … particularly on Supreme Court Justices. They generally have pretty good instincts about when to recuse and when not to.”

Unless the Supreme Court finally takes action and adopts a code of conduct, legislation is essential to strengthen public trust in the high court and avoid questions of ethics or potential conflicts of interest from continuing to haunt the public square. Thomas is not unlike former President Donald Trump in that he has exposed how far powerful officials can go if they don’t feel restrained by the informal guardrails that guided their predecessors. The lack of institutional rules opens the door to officials to engage in bad behavior.

With the new revelations about Thomas, it’s possible the Supreme Court might adopt its own code of conduct. If not, there are also promising signs of bipartisan support in Congress and Senators should seize the opportunity to push for the passage of an ethics code. Unless reform happens, Thomas may not see any reason to desist in this behavior, paving the way for other colleagues, now and in the future, to follow his lead. The results would be disastrous for the reputation of the courts and for the legal framework that is at the core of our polity.

An earlier version of this article incorrectly identified the state South Dakota Senator John Thune represents.