Ethics Dunce: Justice Clarence Thomas

Will Supreme Court Justice Clarence Thomas be impeached because he failed to disclose his wife’s income, as required by Federal law, for at least five years? No.

Should he be? Probably not, though if it was proven that he intentionally used incorrect information, he could be found guilty of perjury. More likely is a civil penalty. In any event, his wife’s income isn’t a crucial piece of information in Thomas’s case, though his ideological enemies will argue otherwise. Such an omission is virtually never a cause for judicial discipline.

Is it a serious breach of his duties nonetheless? Yes.

Does such conduct require his resignation? It could justify a resignation, but not require one.  It is hard to see how the failure to disclose provided any benefit to the Justice. This seems to just inexplicable carelessness.

Was repeatedly indicating that his wife had no outside income when she had in fact earned over $600,000  from the Heritage Foundation in the five years unethical? Absolutely. Thomas either knew about her income and intentionally misrepresented it on the form, knew about it and carelessly left it off the form, or didn’t know about her income when he had an obligation to know, because he had a duty to fill out the form accurately. The best he can claim is Charley Rangel’s supposed level of innocent but irresponsible carelessness. That is unlikely, and stupid if true. The worst is a deliberate effort to hide his wife’s connection to Heritage, which is even more unlikely because it would be even more stupid. Ginny Thomas hardly keeps a low profile. This not something Thomas could hide by ignoring it on a form.

And her activities, while they give anti-Thomas, liberal activists ammunition to cry bias and appearance of impropriety, should not be used to cast doubt on Thomas’s objectivity—not in the 21st Century. As Judge Reinhardt’s recent refusal to recuse himself from the three judge panel considering the legality of California’s anti-same sex marriage law properly noted, the times are long past when one spouse’s opinions and activities can be fairly attributed to the other. Reinhardt is something of a reverse Thomas: his wife, Ramona Ripston, heads the American Civil Liberty Union, which is at least as liberal in its causes as the Heritage Foundation is conservative. He wrote, in part:

“My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence. She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or the female.”
. . .
“Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses. When I joined this court in 1980 (well before my wife and I were married), the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage–that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say “spouses” than “wives,” as by then we had as members of our court Judge Mary Schroeder, Judge Betty Fletcher, and Judge Dorothy Nelson). The committee thanked me for my letter and sometime later changed the rule. That time has passed, and rightly so. In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them.  It is her view, and I agree, that she has the right to perform her professional duties without regard to whatever my views may be, and that I should do the same without regard to hers. Because my wife is an independent woman, I cannot accept Proponents’ position that my impartiality might reasonably be questioned under § 455(a) because of her opinions or the views of the organization she heads.”

This does not excuse Thomas’s inexplicable omission of his wife’s income on the form, however. It was an embarrassing breach of duty for any lawyer, even more so for a Supreme Court Justice. He ought to accept responsibility and appropriate punishment. He also owes his colleagues on the Court, his profession, and the public an apology. We have to be able to expect better than this from someone of his stature and authority.

[Thanks to reader Ken Brown, who brought this story to my attention, albeit in an unnecessarily accusatory fashion.]

8 thoughts on “Ethics Dunce: Justice Clarence Thomas

    • I changed the text anyway. It is criminal in most states and agencies, though statutes talk about “administrative, criminal, or civi” penalties, which means it doesn’t have to be criminal. But it could also be perjury. I do think it’s a relatively minor omission, and no one but Thomas’s foes will push for anything more than a fine. Note that this didn’t even crack the headlines…which I find weird.

    • “But Steven Lubet, an expert on judicial ethics at Northwestern University School of Law, said such an infraction was unlikely to result in a penalty. Although unfamiliar with the complaint about Thomas’ forms, Lubet said failure to disclose spousal income “is not a crime of any sort, but there is a potential civil penalty” for failing to follow the rules. He added: “I am not aware of a single case of a judge being penalized simply for this.”

  1. Thomas is ethically pretty loose. In my book I wrote about his prodigious ability to attract gifts–far more than any of his fellow justices. The failure to report his wife’s sizeable income seems egregious to me. I don’t expect the House to push for impeachment, tho.

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