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In 1969 Abe Fortas Became the First Justice Forced to Resign. Should Clarence Thomas Be Next?

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As pressure grows on Supreme Court Justice Clarence Thomas to resign over his decades-long relationship with a billionaire benefactor, we speak with legal journalist Adam Cohen, who says there is a precedent that should guide lawmakers in how to address the growing scandal. In 1969, Justice Abe Fortas was forced to resign after his financial relationship came to light with businessman Louis Wolfson, who paid Fortas to consult for his foundation. Fortas was a Democratic appointee, but the scandal led to a bipartisan call for his resignation — even though his replacement would be named by Republican President Richard Nixon and shift the balance of the court. Cohen writes in a guest essay for The New York Times that the strong, bipartisan outrage against Fortas “is both a blueprint for how lawmakers could respond today and a benchmark of how far we have fallen.”

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now! For more on the calls for Supreme Court Justice Clarence Thomas to step down or be impeached in light of the recent revelations, we’re going to look at a historical reference, when, “54 Years Ago, a Supreme Court Justice Was Forced to Quit for Behavior Arguably Less Egregious Than Thomas’s.” That’s the headline of an op-ed in The New York Times by Adam Cohen, lawyer, journalist, former member of The New York Times editorial board, author of Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America.

Adam, you write that Justice Abe Fortas’s departure from the court in 1969 is both a blueprint for how lawmakers could respond today and a benchmark of how far we have fallen. Can you lay out this history?

ADAM COHEN: Sure. It is really the most on-point parallel we have historically. And one thing that’s important to note is that what Abe Fortas did is, in many ways, much less bad than what Clarence Thomas did. The amount of money was much smaller. He took $20,000. And as you mentioned, and as Justin mentioned, you know, Clarence Thomas, the amount of island hopping and free plane rides over a 20-year period is staggering, probably well into the millions. So the dollar amount was different, but also Fortas gave the money back, which is something that Clarence Thomas has not done. So, we have a much smaller scandal in many ways.

And what was striking is the bipartisan response that there was in 1969. Fortas ended up resigning from the court, not because Republicans were out to get him — and he was a liberal Democrat — but because Walter Mondale, who was in the Senate, demanded that he resign. One of his biggest supporters in the Senate, Senator Tydings from Maryland, demanded that he resign. He was afraid that he would be impeached by a Democratic Congress. And what’s really striking also is that this is in a time when there was a Republican president, Nixon. So, Democrats were doing this even though they knew that they might, quote, “lose the seat,” a liberal being replaced by a conservative. But these Democrats were so concerned about the integrity of the court, and they kept saying, “What matters is that the public have faith in the court.”

We’re not seeing that at all today. Where are Republicans who are coming out in favor of Thomas stepping down or Thomas doing anything, really, because of the integrity of the court? We don’t have that kind of bipartisanship anymore.

JUAN GONZÁLEZ: And could you also talk, Adam, about how the media have responded to this case? Fox News has filled the void by locating, quote, “an expert” to declare that the story about Justice Thomas is politics, plain and simple.

ADAM COHEN: That’s exactly right, yes. The media has — right. The conservative media have defended Clarence Thomas. As you said, they found an expert, who doesn’t seem like much of an expert, to say that it’s not a big deal.

But also, you know, just where are the voices of Chief Justice Roberts, for example? Right? I mean, we saw last year, when there were — when there were leaks of that abortion ruling a year ago, the chief justice immediately launched an investigation: “We have to get to the bottom of this, what’s going on in the court.” Why is he not saying that now? Why is it a much bigger deal that there were leaks of an abortion ruling, which conservatives were upset about, compared to Clarence Thomas apparently ignoring ethics rules for years? Where is the chief justice in this? We’re not hearing from him at all.

JUAN GONZÁLEZ: And why has the Supreme Court been able to get by for so long with essentially no ethics requirements?

ADAM COHEN: That’s exactly it. It’s the least accountable part of government we have. There is a judicial code of ethics that’s quite — I wouldn’t say strong, but it’s a reasonable code. But it doesn’t apply to the Supreme Court. It applies to lower court judges. Why does it not apply to the Supreme Court? Why do we not have, as I said, investigations internally? Even the liberal justices could be talking out now. If they think that Clarence Thomas is breaking the law, I think they have a duty to say something. So, there’s really no one holding them accountable.

The body that would be doing it is — you know, the one real check on the Supreme Court is impeachment. But right now the House is in the control of the Republicans, so they’re not doing anything. There have been calls from the Senate, which does have a Democratic majority, for an investigation. Maybe that will happen. But this is a broken system, and many people are using this Clarence Thomas scandal to say, you know, we’ve gone on too long without an actual ethics code that applies to the justices, and Congress should pass one now.

AMY GOODMAN: Adam, you wrote a book about the Supreme Court called Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America. Can you relate the ethics scandal that Clarence Thomas is facing today to the theme of your book?

ADAM COHEN: Yeah, it’s a great point, Amy. So, what I argue in the book is that we think of the Supreme Court as being a force for equality and fairness and all that, but if you actually look back to the last 50 years, after Nixon packed the court with conservatives, it’s actually been a force for protecting rich people, for increasing inequality. So, in areas like campaign finance, where they have struck down all these often good laws that Congress passed trying to regulate the amount of money from rich people going into politics; in education, where they’ve ruled in favor of inequality in funding, and on and on and on — so, that has been the theme. We’ve had a court that for 50 years has been really fighting for rich people over poor people. That’s only gotten worse in the last few years, because now we have this 6-to-3 conservative majority. So it’s worse than it’s ever been.

This is very strongly related, because think about when you have corruption, when you have financial corruption, when you have justices taking free trips for 20 years. You know, ProPublica referred to it as “island hopping.” Who is giving that? That’s being given by billionaires, people like Crow, right? Welfare recipients who might have business before the court, they can’t afford to give the justices these luxury vacations. Student loan debt holders — right now there’s a big case before the Supreme Court. If you’re in heavy student loan debt, you’re not able to — you don’t have a yacht to take Clarence Thomas on. So this is yet another way in which the balance is tipped in favor of the powerful and the wealthy.

And, you know, when we talk about this friendship, as Justin was saying, it’s a friendship between Crow and Thomas that was made after Thomas became a justice, so you have to wonder about that. But you also have to wonder, if Clarence Thomas started out ruling in favor of poor people, welfare recipients, took liberal positions, would he continue to get these luxury vacations? I would say not. One of the reasons he’s getting them is because, I would argue, it seems to me, that Crow likes what he’s doing on the court. So this is a way to put one more big thumb on the scale in favor of wealthy people before the court. So it’s very ideologically corrupting.

AMY GOODMAN: And, Adam, Harlan Crow, for all of his power within the Republican Party, we learn he has this Nazi collection, swastika-embossed linens, a signed copy of Mein Kampf. So, a Hitler-embracing megamillionaire, if not billionaire, your thoughts on this?

ADAM COHEN: Yeah, I mean, obviously, he has said he’s just interested in these as historical artifacts, and he’s not in any way a Nazi. That’s his position. Look, I want to accept that, on one level, but on the other hand, I just know that it would creep me out so much to have Hitler’s signature, you know, in my home. And beyond that, I just wouldn’t go out and buy it. I mean, these are — you know, these are really artifacts of something so horrible that — what is the draw? I mean, I don’t know. We’ll have to take him at his word. But it gives me the willies, honestly.

AMY GOODMAN: Well, we’re going to leave it there, Adam Cohen, lawyer, journalist, former member of The New York Times editorial board. We’ll link to your New York Times guest essay, “54 Years Ago, a Supreme Court Justice Was Forced to Quit for Behavior Arguably Less Egregious Than Thomas’s.” Adam Cohen is also author of Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America.

That does it for our show. Democracy Now! produced with Renée Feltz, Mike Burke, Deena Guzder, Messiah Rhodes, Nermeen Shaikh, María Taracena, Tami Woronoff, Charina Nadura, Sam Alcoff, Tey-Marie Astudillo, John Hamilton, Robby Karran, Hany Massoud and Sonyi Lopez. Our executive director, Julie Crosby. I’m Amy Goodman, with Juan González.

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