(Opinion) A tale of two justices: lessons from the Fortas, Thomas affairs

Is there a greater degree of ethical laxness now?

Older readers may remember the brief Supreme Court tenure of Justice Abe Fortas, who was on the court from 1965 to 1969. He had been a law professor at Yale and gained prominence as counsel for Clarence Gideon in the famous U.S. Supreme Court case of Gideon v. Wainwright.

A personal friend of President Johnson, with a reputation for being Johnson’s fixer, Fortas was appointed to the Supreme Court by LBJ. When Chief Justice Earl Warren announced he would step down from the court in 1968, Johnson nominated Fortas to replace him.

The nomination didn’t proceed smoothly.

It was filibustered by Southerners, particularly Sen. Strom Thurmond of South Carolina, who worried Fortas would be too liberal on civil rights.

Fortas didn’t help himself because of a personal extracurricular activity. He taught a summer school course at American University. However, the university didn’t pay him for the course. Clients from his old private law firm, Arnold and Porter, ponied up $15,000 to pay Fortas for this teaching. That might not sound like that much but at the time, $15,000 represented 40 percent of a Supreme Court Justice’s salary.

The teaching gig violated no law, but given the funding, it had a bad look. Supreme Court justices were held to a high standard of propriety, and Fortas’s past clients had business before the court. The appearance of impropriety certainly reared its head. Fortas lacked the votes and had to withdraw his nomination for chief justice.

Antisemitism also played a role in sinking the Fortas nomination. Fortas was Jewish. Sen. James Eastland, D-Miss., chair of the Senate Judiciary Committee, reportedly said, “After Thurgood Marshall I could not go back to Mississippi if a Jewish chief justice swore in the next president.”

Things got further complicated in 1969 when Life Magazine disclosed that, in 1966, the Louis Wolfson Foundation started paying Fortas a $20,000 annual retainer for life in return for unspecified consultation. Louis Wolfson came under investigation for securities fraud. In 1967, he and an associate were convicted of 19 counts of conspiracy and illegal stock sales. Justice Fortas returned the money, but the damage was done to his reputation. Fortas resigned from the Supreme Court on May 15, 1969, and returned to private practice. He denied wrongdoing but again, the look was very bad.

I couldn’t help but think about Fortas in hearing about the newest ethical allegations concerning Justice Clarence Thomas. Fortas’s ethical improprieties were much less serious than the allegations against Justice Thomas. We know that Thomas accepted and failed to disclose 20 years’ worth of lav ish gifts and luxury travel from a right-wing Republican megadonor, Harlan Crow.

Thomas took many luxury trips on Crow’s 162-foot superyacht. Although a public servant, Thomas has been living the private life of a billionaire. Over the last 20 years, he failed to disclose this “personal hospitality” on his federal financial disclosure forms.

This isn’t an ethical close call. These gifts absolutely should have been disclosed. Not disclosing gifts likely in the millions of dollars is beyond being a blind spot. It’s very arguably criminal. Supreme Court justices are required to disclose perks over $415 if not reimbursed. This includes any transportation that substitutes for commercial transport.

This is hardly Thomas’s only ethical lapse. Thomas and his wife, Ginni, are at the center of a spider web of corruption. During the Tea Party days, Harlan Crow gave Ginni Thomas $500,000 to start her lobbying group. Crow funded Ginni’s $120,000 yearly salary. Justice Thomas failed to disclose his wife’s income on his federal financial disclosure forms that are required by law. That failure occurred repeatedly.

Justice Thomas has also refused to recuse himself from any Jan. 6-related case. He was the only justice to vote to shield White House records and documents held at the National Archives from the Jan. 6 Committee. Ginni Thomas was an active participant in the plot to overthrow the 2020 election.

We don’t have a clear picture of how much Ginni Thomas was lobbying on other issues that have come before the Court. Nor do we have a clear picture of Harlan Crow’s financial tentacles. Whether he has personal business connections to specific cases before the court, he has a profound investment in steering the court hard-right. Because of dark money, we don’t know the full extent of that investment. We don’t know how many amicus briefs Crow has bought or what front groups he has used to bring forward his agenda.

While not disclosing the gifts he’s received, Justice Thomas has long pushed to invalidate all political spending disclosure laws in America. He’s insisted that donors have a constitutional right to anonymously influence politics with unlimited amounts of cash. Transparency is Thomas’s enemy, which isn’t surprising given his track record.

The sheer number of non-reporting events and the dollar value put Thomas in a class by himself as far as corruption goes. Compared to the 1960s, there’s a greater degree of ethical laxness now. Thomas has taken the appearance of impropriety to a whole new level and nothing is done about it. How embarrassing and shameful for the Supreme Court.

Is it any wonder that confidence in that institution has utterly plummeted?

Jonathan P. Baird lives in Wilmot.

Categories: Opinion