Clarence Thomas says rules are for losers

A ProPublica story about the justice's flights, yacht trips, and resort vacations — and his ridiculous response that they're just "personal hospitality from close personal friends."

On Thursday, ProPublica laid out the extensive — and expensive — relationship between Justice Clarence Thomas and “real estate magnate and Republican megadonor” Harlan Crow, as well as Crow’s wife, Kathy.

From ProPublica’s article, “Clarence Thomas and the Billionaire”

The story — by Joshua Kaplan, Justin Elliott and Alex Mierjeski — included unforgettable details about an absurd painting and an unbelievable statue.

Inside [Crow’s resort], there’s clear evidence of Crow and Thomas’ relationship: a painting of the two men at the resort, sitting outdoors smoking cigars alongside conservative political operatives.

One of the operatives: The Federalist Society’s Leonard Leo, who worked on Thomas’s Supreme Court confirmation in the White House. Another, Mark Paoletta, who also worked on Thomas’s Supreme Court confirmation in the White House and still includes that on his law firm firm bio. The third, Peter Rutledge, who clerked for Thomas and is now the dean of the University of Georgia School of Law.

And then:

[In October 2021,] Thomas and Crow traveled to a Catholic cemetery in a bucolic suburb of New York City. They were there for the unveiling of a bronze statue of the justice’s beloved eighth grade teacher, a nun, according to Catholic Cemetery magazine. … [Thomas, speaking,] also thanked the donors who paid for the statue: Harlan and Kathy Crow.

In addition to these particularly notable pieces of art, the story details flights and yacht trips taken by Thomas — and often his wife, Ginni Thomas, as well — at Crow’s expense. Just one of the Thomases trips, per ProPublica, could have been valued at $500,000. One of the flights could have cost Thomas $70,000, per charter jet companies contacted by ProPublica, if he had booked it himself.

And that’s ignoring the lodging at the private resort. ProPublica noted that a nearby resort charges upwards of $2,000 a night.

For his part, per ProPublica, here’s what Crow had to say:

In his statement, Crow said that he and his wife have never discussed a pending or lower court case with Thomas. “We have never sought to influence Justice Thomas on any legal or political issue,” he added.

Over at Slate, Dahlia Lithwick and Mark Joseph Stern lay out the substantial problem here for Thomas:

Just last month, the Administrative Office of the U.S. Courts issued new guidance directing justices to disclose the kind of gifts that Thomas has enjoyed for decades. …

There is some dispute about whether the new guidance captures Thomas’ conduct for the first time ever, or if it merely bolds, italicizes, and underlines what should’ve already been obvious. ProPublica cites ethics experts who say that at least some of Thomas’ behavior was prohibited under the old guidance. NBC News cites an ethics expert who says the justice’s behavior was arguably permissible, even if it rested on an interpretation that was, at best, “a stretch.” This question is not academic: The answer determines whether Thomas’ conduct prior to the promulgation of the new rule was outright illegal or simply unseemly.

We align ourselves with the former view: Clarence Thomas broke the law, and it isn’t particularly close.

So, what does Thomas — the longest-serving current justice — have to say about all of this?

Here’s the first part of Thomas’s statement:

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’m going to go through this, but, tl;dr, “Rules are for losers.”

“… we have been friends for over twenty-five years.” In other words, they did not become friends until after Thomas became a justice more than 30 years ago.

“As friends do, we have joined them on a number of family trips …” Thomas just completely ignores the fact that when friends go on trips, they generally pay their own way.

“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.” This is the doozy. It’s one sentence, but Thomas shoehorns a lot in here, so let’s pull this apart, in light of what we now, and see what questions it raises.

“Early in my tenure at the Court, I sought guidance …” Was this before he was even friends with Crow?

“… from my colleagues and others in the judiciary …” Whomst?

“… this sort of personal hospitality from close personal friends …” Again, Thomas wasn’t friends with the Crows when he joined the court. Is Thomas saying that a billionaire can ingratiate himself to a sitting justice and then — once they’ve decided they’re ~close personal friends~ — just start subsidizing the justice’s lifestyle?

“… who did not have business before the court …” Crow is a substantial player in the Republican Party. If Thomas’s statement is viewed to be true, in light of what is known about Crow — again, even from that painting at Crow’s private resort — then it’s also a virtually meaningless statement.

Here’s the second part of Thomas’s statement:

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.

To that, I will let Stern respond.

On Twitter, Stern wrote:

This statement fails to account for Thomas' alleged use of Crow's private jet for his own personal travel, presumably because it cannot possibly be squared with the disclosure guidelines in effect at the time.

In sum, questions not answered, but many more raised.

In the coming months, as the Supreme Court term comes to a close, Thomas will continue — as he has for more than 30 years — to be one of nine people writing the rules for the rest of us.

With his Friday statement, however, Justice Clarence Thomas has made clear that he does not believe the rules apply to him.