The Complete List Of Rationalizations To Excuse Justice Thomas’ Gross Betrayal Of Judicial Ethics, And Other Updates (Part I) [Revised and Expanded]

Just in case you’re wondering, I stand by everything in my previous post about Justice Thomas’s unprecedented breach of judicial ethics and his obligations as a Supreme Court justice, except my belief that Thomas would resign, or be forced to. Not for the first time, I badly over-estimated the integrity of a public servant. Other points…

1. Above is Thomas’s statement this morning regarding the ProPublica report that he has been accepting lavish trips from conservative donor and billionaire Harlan Crow for decades. It is garbage, top to bottom:

  • The fact that the Thomases and the Crows are good friends or old friends is irrelevant, and is no defense.  Of course SCOTUS justices can have friends, and can socialize. However, many of the vacations the Crows took Clarence an Ginni on included other politically interested conservatives, who has access to Justice Thomas and an opportunity to pursue their interests with him as a captive audience. Moreover, one reason such situations suggest impropriety is the Cognitive Dissonance scale: gifts tend to raise the giver and what the giver is linked to on the scale of the receiver. This is why legislators and government employees are limited by laws in what kinds of gifts they receive. The legal ethics rules also caution against accepting expensive gifts from clients, because it might interfere with independent judgment, even though lawyers are supposed to already be on their clients’ sides.
  • “Family trips” is deceit. More than just the Crow family went on these trips. Thomas is obfuscating.
  • What “colleagues”? When was “early in his tenure”? Thomas joined the Court in 1991, well before the vacations with the Crows began. Are we supposed to believe he asked about gifts and junkets like these before they were offered? By colleagues, does he mean other justices? “I once asked somebody and they said it was okay” is a particularly unconvincing justification. 
  • Our first unethical rationalization, and it’s a lulu:#4 Marion Barry’s Misdirection, or “If it isn’t illegal, it’s ethical.Thomas is saying that because no official standards prohibited what he did until recently, what he did was okay. Wrong! Rules, laws and standards don’t make unethical conduct wrong, ethical principles do. Thomas knew that the vacations violated well-accepted and near-universal principles of judicial ethics. He was and is a judge, and judges must avoid the appearance of impropriety and influence. For a Supreme Court justice to invoke the same corrupt logic as D.C.’s rogue mayor is disgusting and depressing.
  • It is false to say that the trips were not “reportable.” Of course they were reportable: Thomas deliberately chose not to report them.

2. In 2004, The Los Angeles Times reported on tens of thousands of dollars’ worth of gifts Thomas had received since joining the court, including Crow’s gift of a Bible once owned by the abolitionist Frederick Douglass, estimated to be worth $19,000, a bust of President Abraham Lincoln worth $15,000, from another admirer, and a 1997 trip in which. Crow flew the Thomases in his personal jet to Northern California to stay as his guest at Bohemian Grove, an exclusive retreat in Northern California. After the article appeared, Thomas stopped reporting Crow’s little favors.

3. The closest analogy to Thomas’ current controversy was the 2004 uproar over Justice Scalia’s duck hunting excursion with then-VP Dick Cheney, who was nominally a party in a case before the Supreme Court. I wrote about it in detail on the old Ethics Scoreboard, and republished those essays here. Scalia refused to recuse himself and defended the SCOTUS justice’s right to have social contact with others in the D.C. government community in a powerful memorandum. I said he was wrong then, and he was wrong. (Maybe Scalia was the “colleague” who advised Thomas.) But the only “gift” Scalia accepted was a ride on Air Force Two; it was a single trip, and Scalia reported it. What Thomas has done is far worse under basic judicial ethics principles.

4. Democrats are calling for Thomas to be impeached. Of course they are: they have proven that clear evidence of breaching a law or regulation isn’t necessary, because to this party impeachment is just another partisan weapon. Thomas may not have done anything technically impeachable, and in law, technicalities rule. This, I hope, is why Ann Althouse wrote yesterday that Thomas hadn’t done anything “wrong.” She likes Marion Barry’s rationalization too, apparently. Of course it was wrong! Accepting the trips, food and transportation was wrong, and not reporting them was wrong—because the conduct undermined public trust in the Supreme Court. It was especially wrong because trust in the Court is at a low ebb, and dangerously so. This is a time for all of the Court to be above reproach, not citing technicalities to excuse unethical conduct.

5. ProPublica argues in a new post that the Ethics in Government Act, passed after Watergate, requires Supreme Court justices to report all gifts worth more than $415. But there is a carve-out known as the “personal hospitality” exemption. It states that gifts of “food, lodging, or entertainment received as personal hospitality” don’t have to be disclosed:

This explains why both Thomas and Crow have carefully described the lavish trips as “hospitality.” However, the law also describes “personal hospitality” to limit the exception so that it only only applies to gifts received from an individual at that person’s home or at properties that they or their family own. ProPublica’s authorities claim that Thomas skirted the law, either intentionally or by mistake. An impeachment based on a mistake of law would be a contrived impeachment indeed. In other words, just the kind Democrats like.

5. In a subsequent post today, Althouse decided to impugn the messenger:

Could ProPublica — or some other organization (the NYT?) — do the same investigation into the hospitality accepted by the other Supreme Court Justices? Was Clarence Thomas focused on because he was known to be way outside the norm or for political reasons? Anyone who at all likes Clarence Thomas is going to be highly suspicious — if not already convinced — that they’re going after him because they already hate him.

Of course Thomas was focused upon because he’s the Left’s boogeyman on the Court—which makes it all the more idiotic and irresponsible that Thomas gave them real misconduct to focus on. Nor does ProPublica’s selective attentions undercut the reality of Thomas’s unethical behavior in any way. Sure, it would be nice if we had a truly objective, non-partisan investigative organization with ProPublica’s mission but without its bias. We don’t. There are, however conservative organizations like Judicial Watch to check on the liberal justices.

Added: Here’s a particularly obnoxious “whataboutism” attempt.

6. Since Thomas will not resign, and as there is no way to force him out if he does not have the decency and respect for the institution of the Court that is required to allow him to accept an ignominious exit, this episode will have disastrous consequences for the Court to an extent we cannot predict. Good job, Clarence. Upon reflection, this reminds me of the Time’s Up scandal in 2021, where the female co-founder and head of the non-profit established to make “powerful men” accountable for sexual harassment and abuse secretly agreed to use her legal talents to assist Andrew Cuomo, a powerful male sexual harasser trying to avoid accountability. Nothing in the legal ethics rules prevented her from taking on Cuomo as a client, but when the representation was discovered, it was time’s up for Time’s Up. She had breached an ethical duty not to harm her organization: she could technically do what she did, but it reeked of hypocrisy, just as Thomas’s conduct reeks of impropriety and illicit influence.

7. Here is another analogy for defenders of Thomas to mull over. If it were revealed that the late Justice Ginsburg had regularly been feted on luxury trips and vacations paid for by George Soros and accompanied by his various acolytes, would they similarly shrug it off as a “nothingburger”?

8. Unless Chief Justice Roberts takes decisive action, and there is no reason to believe he will, the disgraceful combination of the Dobbs leak and this debacle will mark him as one of the weakest and most ineffective SCOTUS Chief Justices in American history.

I apologize: this has gone on longer than I expected, so I just appended a “Part I” to the headline, and will cover the Rationalizations being shamelessly used in Thomas’s defense in the next post.

After all, there are twenty-eight of them….

28 thoughts on “The Complete List Of Rationalizations To Excuse Justice Thomas’ Gross Betrayal Of Judicial Ethics, And Other Updates (Part I) [Revised and Expanded]

  1. For clarity regarding #4 and #6, Thomas cannot be impeached? I thought you had said that was an option in your earlier post. If I misunderstood, I am sorry. If he does not resign, what could even be done? What could Republican lawmakers even do? Can Justice Roberts do anything? I’m not even asking should or would, though should is nice, but what is possible, if anything?

    • That’s because I jumped the gun a bit, Sarah, and wrote that he should be impeached before checking whether there was anything to impeach him for. There may be, but it’s doubtful, as I just explained in a revision of this post

      And no, if Thomas won’t resign, and an impeachment won’t fly, the Court, and we, are stuck with him.

  2. What “colleagues”? When was “early in his tenure”? Thomas joined the Court in 1991, well before the vacations with the Crows began. Are we supposed to believe he asked about gifts and junkets like these before they were offered? By colleagues, does he mean other justices? “I once asked somebody and they said it was okay” is a particularly unconvincing justification.

    I had the same thoughts when I read that.

    Should he have named names?

    If he had specifically discussed this with Rehnquist the first time it came up, should he have said that?

    Is that a weenie if he is passing the Buck?

    Would that unfairly besmirch if the conduct condoned was obviously wrong?

    Add into that the fact that lawyers are supposed to be professional secret-keepers. Whether it is the proper inclination in this case, I suspect his immediate inclination is not to disclose the details of this supposed discussion.


  3. I am interested in learning how many Americans believe that the SCOTUS is a neutral body that focuses on ruling on Constitutional issues and not on partisan ideology. I am not saying it is always the case, but you rarely see crossover voting except on the most egregious Constitutional violations before them.

    The mere fact that we are concerned about whether our president gets to more federal judicial nominees on the bench, let alone salivating over whether or not our side gets to appoint “our Justices” to the supreme court proves that the perceived impartiality of the court is non-existent in the minds of most political types and the partisans on the right and left.

    Does anyone believe that AOC, who has stated she will introduce articles of impeachment against Thomas, is concerned about impartiality? I don’t.

    When the SCOTUS is viewed as two teams battling it is no wonder that one side is loathe to give up its golden glove player with his 400 lifetime batting average. We The People have destroyed the credibility of the Supreme Court by demanding the appointment of players who think our way. I believe it is a bit unfair to lay all the blame on any Justice who fails to live up to an ideal that we ourselves do not support.

    • I think there are two sides on the supreme court but those sides are not left and right. They are the side that believes in upholding the constitution and the side that believes that the constitution is a living document that can be rewritten at will. Rewriting the constitution at will while totalitarians take over the country will lead to no constitution and a totalitarian state.

      • NP
        Your point is well taken. Whether left or right or originalists or living document types I believe we are coming to the same conclusion.

        There is no point in having a constitution that can be changed at will or interpreted to mean anything one group wants.

        • Exactly. So long as everyone can agree the constitution is the constitution in perpetuity and the goal of the supreme justices is to keep it that way, I don’t care if the justices are leftwing or right wing. I actually think it would be best to have a good mix of the two so that holes don’t get dug out of it by likeminded thinkers rationalizing their political points deeper and deeper into the bedrock of the constitution. Some political tension over justifications is actually a good thing.

          That all changes when the equation moves from questioning “is something constitutional” to “who needs the constitution?”

  4. Again, and with all due respect, unless you show me 1) that these trips, in any way, did or could have affected Thomas’ decisions (e.g., cases directly involving Harlan, or anyone Thomas got chummy with on these trips), 2) that the trip, or non disclosure thereof, violates actual enforceable rules or guidelines, and 3) that none of the other justices, especially the ones the Dems/left as their own, did something similar, then I will regard this as nothing yet another salvo in the Thomas smear campaign, and the crusade to take down the most conservative justice (and most infuriating to the left, because he’s black who does not act like they expect him to do) and replace him with reliable lefty judge, like that moron who did not now what Brady motion is.

    Call it tribalism if you wish, but we do live in very tribal time, and with much at stake, largely because of the other side.

    Until they prove that they will hold everyone, especially their own, to the same standards, I will not care or give a damn. There is too much at stake to continue holding ourselves to standards of bygone times.

    • Are you really refusing to comprehend the appearance of impropriety? In professional ethics, creating doubt and a basis for distrust is the issue. Doubt is disastrous in a democracy. The trip itself with that patron and in that company is sufficient to create doubt: a SCOTUS justice has a duty not to allow such appearances to have that effect. It’s not an exotic concept.

  5. I would never make a comment referring to an ethics ivory tower, but I can’t believe you said “Doubt is disastrous in a democracy.” Nixon, Viet Nam, Carter, Iraq, Sanders, Feinstein, Biden, ad infinitum. (Pearl clutching) if Thomas doesn’t resign immediately, our perfect union will no longer be perfect. (I bet I could write your response if you cared to make one).

    • Oh…HUH? Doubt is absolutely disastrous to a democracy, which requires public trust in institutions and each other. EA has documents\ed the precipitous drop in trust regarding both over several decades, and the results are blazing for all to see.

      You really consider that comment to be substantive? Citing figures who have added to cumulative distrust somehow debunks the crucial nature of distrust? Wow. I hope you can do better than THAT.

      Nor is “pearl clutching” anything but a cheap and lazy substitute for a genuine argument: it’s just another version of the dodge, “it’s no big deal!” An unethical SCOTUS Justice while the Court itself is facing a credibility and legitimacy crisis is a big deal.

      Check the Comment Policies: I don’t appreciate having my posts being misrepresented. I never said anything about a Thomas’s immediate resignation being required to keep “our perfect union perfect.” You could use that (ridiculous) rhetoric to deny the importance of any necessary act. Yes, it is important not to have SCOTUS justices who have engaged in serious ethical breaches and the appearance of impropriety. And it is dangerous not to insist on that standard.

    • I feel like your list is missing an important contributor to the lack of public trust in government these days, but I just can’t put my average-sized, human-colored finger on it.

      • I just can’t put my average-sized, human-colored finger on it.

        Put it firmly on the Clintonistas, SanFranNan, et al, AND the slobberings of WaPo, NYT, MSLSD (sic), CNN, ad infinitum/ad nauseum.

        Serious question: What exactly is human-colored, and have you been…um…cleared to use the word colored…?

        • “HA!” You have until the end of today to retract that absurd and insulting statement and apologize for it. As I have pointed out many, many times, my complete appreciation of what’s wrong with Trump’s character is extensively documented, often in the most explicit and denigrating terms. You do not get to misrepresent me here: nobody does.

          The clock is running.

          • FROM JAM: Alert! Terri has been banned, as I suspected he/she/it would be sooner or later. If being deliberately insulting to the host didn’t do it, the Stupidity Rule would have,

            Do not reply if Terri tries to sneak back. Your comments will just go down with the ship.

      • If you can’t find a way to restrain your Trump obsession and stick to the topic of posts you comment on, I’m going to have to show you the door. It’s just trolling, and I don’t put up with that forever.

        And you still owe me a name. Your deadline is tomorrow, 10 PM EST.

  6. Doubt is deleterious to a democracy to be sure. I’m not sure that bolding “absolutely” is not “a cheap and lazy substitute for a genuine argument”.

    Yes, I do consider my comment as substantive. Citing figures who have added to cumulative distrust does not “somehow” debunk anything, but kind of demonstrates (at least as I see it) that trust is far in the rear-view mirror. If that was not clear, I’ll try to do better than that (first bolding, now all caps? Did I hit a sore spot? Apologies if so).

    Pearl clutching is just vernacular and is not meant as another version of “no big deal”. The Court may be facing a crisis, but it’s not in a vacuum. The senate, the house, state houses, state courts, for cripe sake, the Constitution itself is facing a crisis.

    I acknowledge that you didn’t refer to a perfect union, and that may have come off snarkier than I intended and obviously offended you. Look, I get it that you are concerned here with ethics as separate from law, politics, and even practicality (if I may say that without further offending). My view on the subject and my purpose in posting can be capsulized in the following. I prefer Justice Thomas to another Justice who doesn’t know what a woman is.

    • “I prefer Justice Thomas to another Justice who doesn’t know what a woman is.”

      Thus confirming my conclusion: you’re not prepared to discuss ethics. That’s #22: Ok, there are worse options than Justice Thomas. The post was no comparative. Let’s see” an unethical justice, or a lump of ham? An unethical Justice, or a artichoke? The objective here is to elevate the ethical culture, and an unethical SCOTUS justice seriously undermines that objective.

      And since “not knowing what a woman is” is relevant to a tiny percentage of matters before the Court, and not being trusted by anyone who understands what judges are supposed to do is relevant to the entire judiciary system, your summary is simply unserious as well as unconvincing.

      Meanwhile, ABSOLUTELY absolutely. Without public trust, democracy fails.

  7. “Meanwhile, ABSOLUTELY absolutely. Without public trust, democracy fails.”

    We’re at that tipping point now, if not past it, dare I say.

    I think we all get where you’re coming from, but this is the point, or very near to it, that to cede to the other side will quickly finish the remaining vestiges of a constitutional government.

    I’ve asked the question before, what purpose is served by ethically entering the gulags?

    Look at the state of things. Jeebus, with the indictment of Trump, what more evidence is there? He’s just the first of many.

    The ends don’t justify the means, but if the ends are THE ends, what means are available to us?

    I prefer polarization to subjugation, and I will not go ethically into the night when the other side has zero ethics.

    That’s suicide.

    • “ I’ve asked the question before, what purpose is served by ethically entering the gulags?

      Look at the state of things. Jeebus, with the indictment of Trump, what more evidence is there? He’s just the first of many.”

      Yes, being charged with the same financial crimes for which your personal attorney already went to prison for years ago is just like being sent to a gulag for being conservative. The persecution is horrendous but your bravery through it is inspiring.

      • Trump, Trump, Trump. We get it. You hate him. I hate any number of leftwing politicians, but hatred is not actually a valid argument. “I hate Trump so persecuting him with flimsy excuses til we pin something on him!” is not the refutation of totalitarianism that you think it is.

        • I didn’t bring up Trump, I just responded to a hysterical, self-victimizing, martyr-complex-heavy comment about him.

          And being charged with the same financial crimes one’s lawyer already went to prison for is not “persecuting him with flimsy excuses.” Trump is the architect of his own fate here, not some victim. And you can disagree on the merits of the case without invoking gulags and insisting that half the country are perpetual victims.

          • I find this baseline certainty anti-Trumpers have that the weaponized totalitarian state will never be aimed at someone or something they care about curious. Totalitarians generally only encourage their supporter’s extremism for the period of time it is useful to them. Once power is consolidated the weaponized power is generally turned to aim at agitators of all varieties, including the agitators they previously encouraged.

            How are you going to feel when it is your rights that are curtailed? Are you so consumed by hate that you are willing to sacrifice your own rights to eliminate the target of your hate? Is it fog of war blinding you to the ramifications of today’s actions? I suppose if that is the issue you wouldn’t be able to answer that.

            What if it were Hunter Biden charged with half of a crime 34 times interfering with the next election? Would you be fine with that? It would be an interesting experiment to charge a high ranking Hunter Biden with the exact same type of charges in a red state and see how the left reacted. Such an experiment would be unethical of course, but it would be interesting.

            • I think I’ve made it quite clear that I do not see Trump being charged with the same financial crimes that his lawyer went to prison for as evidence of a “weaponized totalitarian state” nor of any curtailing of rights.

              Hunter Biden has likely committed many crimes and I won’t be even a little bit mad if he goes down for them. I also haven’t seen anyone on the left threaten violence if that happens, like Trump and his supporters have.

  8. Jack, if it makes a difference, I am appalled by Justice Thomas’s conduct. He’s not stupid and shouldn’t have accepted these “gifts,” no matter what the rules were. It screams impropriety, so I’m baffled by whatever rationalizations he told himself so that he could accept these gifts without running afoul of the appearance of impropriety. I really like Justice Thomas’s rulings, but this undoes any legacy he had hoped to have.
    I struggle with removing him from the bench. Biden has astonished me with the choices he’s made. His administration actually made T bonds more risky, which I thought was impossible.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.