Clarence Thomas proves Justices can’t police themselves

The Supreme Court needs term limits and a binding code of ethics.

By
Michael Waldman
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186
SOURCEBrennan Center for Justice

The Supreme Court keeps tripping over its own robes. Last week, ProPublica revealed that a conservative megadonor has been secretly subsidizing the lifestyle of Justice Clarence Thomas. In a rare public statement, the justice claims he asked others on the Court and in the judiciary, who assured him he need not disclose such beneficence.

It’s not clear which is worse: if this is true, or if it isn’t.

Thomas said all this merely involved “personal hospitality” from a friend (albeit a billionaire who befriended Thomas only after he was appointed to the Court). That might evoke a dinner party or a weekend at a friend’s lake house. Hardly: Thomas frolicked on Harlan Crow’s superyacht, flew on his personal jet, vacationed at his private resort, and traveled with him to Bohemian Grove, an all-male retreat in California. According to ProPublica, the largesse was worth hundreds of thousands of dollars.

Thomas claimed to want to avoid chichi vacations. “I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it,” Thomas said. “I come from regular stock, and I prefer that — I prefer being around that.” They say hypocrisy is the tribute vice pays to virtue.

This all shows the perils of DIY ethics. The Supreme Court is the only court in the country with no enforceable code of ethics. Sen. Sheldon Whitehouse (D-RI) has pointed out that the Court quickly launched a formal investigation of the leak of the Dobbs decision last year. It could do so again. If the Court will not craft a set of ethics rules — and pronto — Congress can and should do so.

Congress should also investigate. There’s ample precedent: Justice Abe Fortas, too, was found to be receiving support from a wealthy benefactor, and the controversy proved so intense that he resigned.

But beyond stronger rules, the scandal shows how lifetime tenure can engender justices with a startling sense of entitlement and a belief that they are beyond accountability. Thomas almost certainly knows that cavorting around the globe in a superyacht isn’t “personal hospitality” in the spirit of current rules. After briefly disclosing the trips and causing a minor stir in 2004, he decided it would be better to keep them to himself. He was confident he could avoid consequences.

Where did that confidence come from? At least in part from the assurance that comes with years of accumulated power and influence.

Few government jobs anywhere in the world are quite like that of U.S. Supreme Court justices: nine unelected people who dictate wide swaths of national policy. And if they’re put on the Court at a young age, they get to do so for many decades with no real risk of removal. Only one justice has ever been impeached (Samuel Chase in 1804). None has ever been convicted. Supreme Court justices are, in this way, more akin to royalty than public servants. Only a single U.S. state mirrors the federal system — the rest have either fixed terms or mandatory retirement.

We can make a change, as I recently argued in the Los Angeles Times. There is a broad bipartisan consensus in favor of term limits for Supreme Court justices. Justices would serve for up to 18 years, with each president allowed two appointments per presidential term. I describe all this in my upcoming book, The Supermajority: How the Supreme Court Divided America.

Term limits would ensure that the composition of the Court better mirrors the preferences of American voters and stop presidents from influencing national policy decades beyond their terms in office. Term limits would also prevent any individual from accumulating unaccountable power, as Thomas seems to believe he has.

George Washington understood the rationale when he stepped away from the presidency after two terms, establishing a norm that no public official should hold that much power for too long. When presidents stopped complying with that norm, it was written into law. It’s time to bring the same accountability to the Supreme Court.

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Michael Waldman
Michael Waldman is president and CEO of the Brennan Center for Justice at NYU School of Law. A nonpartisan law and policy institute that focuses on improving systems of democracy and justice, the Brennan Center is a leading national voice on voting rights, money in politics, criminal justice reform, and constitutional law. Waldman, a constitutional lawyer and writer who is an expert on the presidency and American democracy, has led the Center since 2005. He was a member of the Presidential Commission on the Supreme Court of the United States in 2021. Waldman was director of speechwriting for President Bill Clinton from 1995 to 1999, serving as assistant to the president. He was responsible for writing or editing nearly two thousand speeches, including four State of the Union and two inaugural addresses. He was special assistant to the president for policy coordination from 1993 to 1995. Waldman is the author of the forthcoming book The Supermajority: The Year the Supreme Court Divided America (Simon & Schuster, June 6, 2023). The court’s 2022–2023 term, he argues, was the most consequential in decades, with decisions like Dobbs, Bruen, and West Virginia v. EPA reshaping American politics. Waldman explains how the court has gained so much power over Americans’ lives with so little connection to the public will. He shows the supermajority’s dangerous reliance on a newfound, radical “originalism.” He traces the similarities between this court and its most activist and controversial predecessors. And he offers a path forward. Jane Mayer of The New Yorker called The Supermajority “nothing less than a public service.” Waldman is also the author of The Fight to Vote (Simon & Schuster, 2016, reissued in 2022), a history of the struggle to win voting rights for all citizens. The Washington Post wrote, “Waldman’s important and engaging account demonstrates that over the long term, the power of the democratic ideal prevails — as long as the people so demand.” The Wall Street Journal called it “an engaging, concise history of American voting practices,” and the Miami Herald described it as “an important history in an election year.” The Fight to Vote was a Washington Post notable nonfiction book for 2016 and a History Book Club main selection. Waldman is also the author of The Second Amendment: A Biography (Simon & Schuster, 2014). Publishers Weekly called it “the best narrative of its subject.” In the New York Times, Joe Nocera called it “rigorous, scholarly, but accessible.” The Los Angeles Times wrote, “[Waldman’s] calm tone and habit of taking the long view offers a refreshing tonic in this most loaded of debates.” In a Cardozo Law Review symposium devoted to the book, a historian wrote, “The Second Amendment is, without doubt, among the best efforts at melding constitutional history and constitutional law on any topic — at least since the modern revival of originalism two generations ago.” His previous books are My Fellow Americans: The Most Important Speeches of America’s Presidents from George Washington to Barack Obama (2003, reissued 2010), A Return to Common Sense (2007), POTUS Speaks (2000), and Who Robbed America? A Citizen’s Guide to the S&L Scandal (1990). His frequent appearances on television and radio to discuss policy, the presidency, and the law include 60 Minutes, All In with Chris Hayes, CBS Evening News, Good Morning America, Meet the Press Daily, Morning Joe, NBC Nightly News, Nightline, PBS NewsHour, and the Rachel Maddow Show, as well as NPR’s All Things Considered, Fresh Air, and Morning Edition. He writes for Bloomberg, Democracy, the New York Times, Politico, Reuters, Slate, the Daily Beast, the Washington Post, and other national publications. He is a graduate of Columbia College and NYU School of Law.

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