The Supreme Court's decisions make Clarence Thomas's ethics questions more relevant

Although some on the right are criticizing the left's ethics questions as pure politics, they've got it all wrong.

Over the next eight weeks, the justices of the U.S. Supreme Court are expected to issue decisions that could alter the course of the nation for the years — or decades — to come.

And though some on the right are criticizing the left’s questions about the state of judicial ethics at the high court as being solely based in politics, they’ve got the matter reversed.

The politics at the court have highlighted the questionable ethical decisions of the justices — and particularly by one of its members, Justice Clarence Thomas.

First, the current context.

On Thursday, we’re expecting the first of several opinion days in the next two months. What remains of the Voting Rights Act could be obliterated, state courts could be written out of federal redistricting questions, the watered-down version of affirmative action that schools are allowed to employ today could be crushed, and religion-based claims — whether brought under the Civil Rights Act of 1964 or in the context of the speech clause of the First Amendment — could receive an ever-more-privileged space within the statutory and constitutional landscape. The justices also could strike down the Biden administration’s student loan forgiveness program, and they also have a pair of cases before them that could drastically change the internet.

The Supreme Court also already granted a case for next term that could upend the federal administrative state. The justices also have other huge cases knocking at the door — the mifepristone case, the Affordable Care Act preventative care and PrEP Religious Freedom Restoration Act case, and a gun case out of Illinois.

All of that to say, the Dobbs decision changed America overnight. And we’re still dealing — every day — with the fallout. And now, in the months to come, the six-justice majority could and likely will, on many fronts, continue to move the nation’s laws — and with them the country — to the right.

In that context, the questions about the court’s ethics can quickly appear to be based more in politics than in ethics. This was, in effect, much of the Republicans’ response to Democrats’ claims at last week’s Senate hearing on Supreme Court ethics reforms.

The main ethics questions have related to Thomas, however, and they are not new.

As I wrote previously, ethics concerns were last raised in a major way in 2011 — when the court still leaned conservative but was far less reactionary than it is now — partially in “response to a vein of reporting about Justice Clarence Thomas [his] ‘unusual, and ethically sensitive, friendship’” with Harlan Crow.

So, while the one-off stories about other questionable moves from other justices suggest that more transparency is necessary across the board and that recusal rules should be more aggressively addressed, the behavior of Thomas appears to be different. With him, this is a longstanding pattern of behavior that was questioned previously and that, perhaps even as a result, he has apparently just continued unabated without disclosure to prevent questions.

In that context, the direction in which the new court majority is taking the country — particularly the five-justice majority that does not include Chief Justice John Roberts — becomes a fact relevant to consideration of ethical questions surrounding Thomas (and his wife, Ginni Thomas).

What’s happening now — where the court is taking us — is, in many ways, where Thomas has been urging the court to go for decades. That he has done so with the apparent longterm financial backing of a key conservative donor makes these questions — important in 2011 — essential now.

It’s not that people on the left only care about ethics because of the court’s decisions — although, honestly, that would be fine, too! — it’s that the new majority’s decisions, and the possibility of more of them, are so disruptive to established organizing principles of our modern legal society that they center the ongoing ethical questions surrounding Thomas. That, in turn, has led to broader ethics discussions and reporting about the justices.

It should not be surprising — and is, in fact, necessary — that reporters, advocates, lawmakers, and others who care about the law be asking these questions now. And continue to do so as long as it’s needed.

Had there been more of this earlier, maybe things would be different now.