Justice Clarence Thomas said Friday that he did not disclose luxury travel paid for by a Republican donor because he was advised at the time that he did not have to report it.
In a rare statement sent via the Supreme Court’s public information office, Thomas said that the trips he and his wife, conservative activist Ginni Thomas, took with the donor Harlan Crow and his wife – whom Thomas describes as among his family’s “dearest friends” – were the “sort of personal hospitality from close personal friends” that he was advised did not require disclosure.
Thomas’ travel with the Crows, which included trips on the donor’s yacht and private jet, was the subject of a bombshell ProPublica report published Thursday. Congressional Democrats have called for an investigation into the matter and for a stronger ethics code for the justices, and some federal judges are also speaking out.
The justice notes that the guidelines for reporting personal hospitality have been recently changed.
“And, it is, of course, my intent to follow this guidance in the future,” Thomas said.
The ProPublica report describes Thomas accepting travel hospitality from Crow that included lavish trips to Indonesia, New Zealand, California, Texas and Georgia. Some of these trips reportedly included travel on Crow’s super yacht or stays at properties owned by Crow or his company.
Thomas’ critics quickly pushed back on his defense Friday, with Democratic Sen. Sheldon Whitehouse zeroing in on Thomas’ assurance that the Crows did not have business before the high court.
“Oh, please,” tweeted Whitehouse, who chairs a Senate Judiciary subcommittee that oversees the federal bench. “If you’re smoking cigars with Leonard Leo and other right-wing fixers, you should know they don’t just have business before the Court — their business IS the Court.”
The ProPublica report described a portrait hanging at a New York property owned by Crow’s company that depicts Thomas, Crow and other influential figures in Republican politics, including Leo, the former Federalist Society head who played a crucial role in former President Donald Trump’s makeover of the federal bench. They are sitting together smoking cigars in the painting. The report says that some trips Thomas took with the Crows were also attended by executives of major corporations as well as a leader of a conservative think tank, the American Enterprise Institute. Crow himself sits on the board of AEI, ProPublica said, and the think tank’s scholars have occasionally filed friend-of-court briefs in Supreme Court cases.
Federal judges speak out and worry about legitimacy
The controversy has cast a bright light on the judiciary that is increasingly called upon to resolve raging disputes between the political branches of government.
As confirmation hearings have turned into political spectacles and hot-button cases on abortion, gun rights and religious liberty have broken along familiar conservative-liberal ideological lines, critics say the court appears more and more political.
Two dozen Democratic lawmakers from both chambers sent a letter to Chief Justice John Roberts on Friday, calling for a “swift, thorough, independent and transparent investigation” into whether ethics rules and laws were violated by Thomas’ trips.
It also triggered reaction with another constituency that is rarely heard from: federal judges who serve on the lower courts. Current and retired federal judges don’t normally speak up about internal matters outside the confines of the courtroom, but they agreed to talk to CNN if their names were withheld.
One retired judge – a Republican appointee – told CNN that the disclosure of the trips made them “livid.”
“This is precisely why the public respect for the Supreme Court has plummeted,” the judge said. “This is far greater than mere ethics violations. It’s about the perceived legitimacy of the Supreme Court.”
The federal court system judiciary consists of the nine justices who sit on the highest court in the land, as well as 94 district level trial courts and 13 courts of appeal.
But another judge, also a Republican appointee, sided with Thomas in the dispute, saying that the rules had not been clear and that a committee on the Administrative Office of the US Courts had been working for months to clarify them, only issuing revisions recently.
“I always thought this area was kind of confusing,” the judge said, adding that regulations concerning what constitutes “personal hospitality” in the rules had never been made clear until a clarification went into effect on March 14.
“Hospitality was never defined, and it seemed odd to think of a situation where you are spending social time with a close friend where at least occasionally some transportation doesn’t get involved,” the judge said. “If I go spending a weekend with my buddies – someone is going to be driving someone where we are going.”
Another also sided with Thomas, saying that they had actually been told on two occasions that they had shared more information than was necessary. “The Administrative Office of the United States Courts are concerned with consistency – they want the reports to look the same” the judge said.
“They don’t want a situation where one judge reports information that others aren’t reporting,” the judge added.
“The new rules draw a line,” the judge said. “In the end, we are bound by whatever rules we have.”
No code of conduct for Supreme Court justices
Another government source with close ties to the judiciary noted that the dispute around Thomas concerns regulations that apply to all federal judges, but, he says, it has also reignited a dispute about the fact that Supreme Court justices do not have a code of conduct that applies directly to them.
As things stand, all lower court judges must abide by a code of conduct, but the justices have so far declined to either bind themselves to the current code or create one for themselves. The source said that the sentiment of the lower court judges they had spoken with was that they felt like the judiciary as a whole was being tainted by the fact that the nine justices won’t adopt a code of conduct.
The source said that the sentiment among some lower court judges is that it “makes us all look bad.”
In a 2011 report, Chief Justice John Roberts addressed critics who say that the Judicial Conference’s Code of Conduct for United States Judges should apply to the Supreme Court.
He said that “Article III of the Constitution creates only one court, the Supreme Court of the United States.” It empowers Congress to establish additional lower courts. Roberts said that the two bodies are different, and so a code of conduct instituted by the Judicial Conference that Congress created could not apply to the highest court in the land.
Roberts did concede that the members of the high court “consult” the code of conduct as well as other materials including advice from the court’s legal office. But, he concluded, the court has “no reason to adopt” a code of conduct.
“I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Roberts wrote at the time.
In a statement to ProPublica and CNN, Crow said that he has been friends with Thomas and his wife Ginni for more than 30 years, and that the hospitality he has extended the justice over the years was “no different from the hospitality we have extended to our many other dear friends.”
“Justice Thomas and Ginni never asked for any of this hospitality,” Crow said in the statement. He said that we “never asked about a pending or lower court case, and Justice Thomas has never discussed one.”
Read Thomas’ statement in full:
“Harlan and Kathy Crow are among our dearest friends, and we have been friends for over twenty-five years. As friends do, we have joined them on a number of family trips during the more than quarter century we have known them.
“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable. I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.
“These guidelines are now being changed, as the committee of the Judicial Conference responsible for financial disclosure for the entire federal judiciary just this past month announced new guidance. And, it is, of course, my intent to follow this guidance in the future.”
This story has been updated with additional details.