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Can Anyone Hold Justice Clarence Thomas to Account for Secret Dealings with Billionaire GOP Megadonor?

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We speak with longtime Supreme Court reporter Dahlia Lithwick about the mounting evidence of apparent financial impropriety by the court’s conservatives. ProPublica recently reported that Republican billionaire Harlan Crow paid two years of private school tuition for Clarence Thomas’s grandnephew — payments that Thomas did not include on his annual financial disclosures. This comes after previous reporting revealed Crow also paid money to Thomas and his relatives in an undisclosed real estate deal, and that Thomas accepted luxury travel from Crow virtually every year for decades, while failing to follow a federal law that requires him to publicly report most gifts. Meanwhile, The Washington Post reports conservative judicial activist Leonard Leo arranged for Thomas’s wife, Ginni Thomas, to be paid at least $80,000 for consulting work over a decade ago and asked that the payments not specify Ginni Thomas’s name in any paperwork. Thomas later cast the deciding vote in a 5-4 ruling that gutted the Voting Rights Act of 1965, in a case supported by Leo and his conservative legal network. “Members of the Senate are beginning to understand that it is going to be incumbent on them to step in and issue some ethics rules or demand that the court issue ethics rules for itself,” says Lithwick, who covers the courts and the law for Slate and hosts the podcast Amicus.

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

AMY GOODMAN: This is Democracy Now!, democracynow.org. I’m Amy Goodman.

Calls are growing for new ethics rules for Supreme Court justices as more information emerges about Justice Clarence Thomas’s secretive financial dealings with the Republican activist billionaire Harlan Crow. Last month, ProPublica revealed Thomas had failed to report frequent luxury trips paid for by Crow, including trips aboard Crow’s private yacht and jet. Thomas also failed to disclose he had sold property to Crow, including a home where Thomas’s mother now lives rent-free. In addition, Crow paid for the private school tuition for Thomas’s grandnephew, including a year at Hidden Lake Academy in Georgia, where the tuition is over $6,000 a month.

Also, The Washington Post has reported conservative judicial activist Leonard Leo arranged for the Judicial Education Project to secretly pay Thomas’s wife, Ginni Thomas, $80,000 for consulting work over a decade ago, without mentioning her name. Months later, the nonprofit filed an amicus brief in the landmark case Shelby County v. Holder, in which Clarence Thomas cast the deciding 5-to-4 vote that gutted the Voting Rights Act of 1965.

Despite these revelations, Supreme Court Chief Justice John Roberts has refused calls to issue new ethics rules for justices. And then we’ve got the case of his wife getting over $10 million for being a headhunter for elite firms. This is Chief Justice Roberts’ wife. And these law firms often have cases before the Supreme Court.

We’re joined now by Dahlia Lithwick, who covers the courts and the law for Slate and hosts the podcast Amicus. Her recent book is titled Lady Justice: Women, the Law, and the Battle to Save America. Joining us from Seattle, where she spoke at the Crosscut Ideas Festival.

Dahlia, thanks for joining us again on Democracy Now! Can you respond to this avalanche of information, starting with Justice Thomas but not ending with him?

DAHLIA LITHWICK: It’s such an amazing story, Amy, and it is really, in some sense, surprising to me that a story that I thought would be a one-day story, when we heard the superyacht story and the travel story, has turned into weeks of sustained focus as investigative reporters for a whole bunch of outlets essentially say, “But that’s not all.”

And I think you’re quite right, the capstone of it, in some sense, were the stories at the very end of last week, both about Harlan Crow paying for Clarence Thomas’s grandnephew’s tuition, never, ever disclosed, despite the fact that Justice Thomas, earlier in his career, had disclosed that he was getting his tuition paid for. So he knew this required disclosure.

And then, in some sense, the thermonuclear story that came last Thursday night, that, as you said, Leonard Leo, who is sort of the front man for a whole bunch of groups that have worked to take over the court, was, quite literally, directing Kellyanne Conway to put money in Ginni Thomas’s pocket, and included a note that said, quote, “No mention of Ginni, of course.” He knew this was wrong. Nobody disputes it’s wrong. Now what we’re really doing is haggling about the price.

AMY GOODMAN: I want to go to Senate Judiciary Chair Dick Durbin interviewed on CNN by Jake Tapper Sunday.

JAKE TAPPER: So, because of the separation of powers, I believe, you’re not willing to subpoena the Chief Justice John Roberts. You’ve indicated that it’s unlikely you’re going to be able to pass any legislation that would impose an ethics code on the court. And you’ve said you don’t think the Justice Department should investigate Justice Thomas’s actions. So, in essence, aren’t you kind of throwing up your hands and saying the Supreme Court isn’t really accountable to anybody but themselves? There’s nothing you can do, even though you’re the chairman of the Senate Judiciary Committee?

SEN. DICK DURBIN: Not at all, Jake. Let me just tell you, the bottom line is this: Everything is on the table. Day after day, week after week, more and more disclosures about Justice Thomas. We cannot ignore them. The thing we’re going to do first, obviously, is to gather the evidence, the information that we need to draw our conclusions. I’m not ruling out anything.

AMY GOODMAN: So, Dahlia Lithwick, if you can respond?

DAHLIA LITHWICK: We’re in such a weird moment, Amy, historically, where, for some reason, Congress has taken the posture that they can’t do anything to regulate the court. And the court, conveniently, takes the same posture, that this is a separation of powers issue, a judicial independence issue.

It’s really useful to remember — and professor Steve Vladeck at UT Austin has been making this point for weeks — that Congress has regulated the court’s conduct for centuries. Congress has determined the jurisdiction of the justices. For a long time Congress forced the Supreme Court justices to, quote, “ride circuit,” travel around the country and hear cases. Congress has set the number of seats on the court. So the notion that Congress has no business intervening with how the judiciary works because that would be a separation of powers conflict is simply wrong.

And I think what you were hearing there from Senator Durbin is an understanding that now is not the time to stand back and let the courts say more or less what you talked about in your last segment: “The judiciary is a monarchy. It cannot be regulated by anyone other than itself.” It seems as though, between the hearing we had last week at the Judiciary Committee and the conversation we’re hearing over the weekend, that members of the Senate are beginning to understand that it is going to be incumbent on them to step in and issue some ethics rules or demand that the court issue ethics rules for itself — that’s the Angus King-Susan Collins bill — but that the notion that there’s absolutely nothing that the other branches of government can do, because the court is made of magic and unicorn and rainbows, I think that era is now over.

AMY GOODMAN: Now, federal judges are much more strictly regulated. Is that right? And aren’t there judges across the country that are demanding that the Supreme Court abide by similar rules?

DAHLIA LITHWICK: It’s been such an amazing revelation. We heard over the weekend that there was a lower federal court judge, a district court judge, who was asking the body that — the Judicial Conference, that enforces rules, to do something about Justice Thomas a decade ago.

So, yes, it is absolutely true that lower court judges are bound by really strict rules. You can’t buy them a cup of coffee. I know federal judges who won’t get in an elevator with someone who’s got business before them. They are very careful to police themselves, because they understand — and this is in The Federalist Papers — that the only power the judiciary has is public approbation, and that that is an incredibly fragile thing.

And so, the idea that the chief justice put forth when he said he was not going to come testify before that hearing last week, that somehow it’s unreasonable to ask judges to police themselves, or that they should be left to determine their own ethics rules, it’s not just a question of, you know, this looks kind of hinky. It’s that they are undermining the integrity of the judicial branch. Every judge except the Supreme Court justices have to abide by the ethical canons and by the statutes. The notion that there’s some sphere of privacy in Clarence Thomas’s personal life, or that Leonard Leo said, “Oh, you know, we didn’t disclose this donation — this payment to Ginni Thomas because the gossips were going to go after Clarence Thomas,” that’s not how this works. That’s not how any of this works. They are meant to use these laws to guide their conduct, and they choose not to.

AMY GOODMAN: Dahlia, let’s talk about the specific issue of student debt, because before the Supreme Court is the case of student debt, argued in February. Clarence Thomas, Chief Justice Roberts expressed extreme skepticism. Even this week, the debt ceiling issue could stop all kind of student loan forgiveness. So it’s extremely significant that Clarence Thomas had his grandnephew, who he treated as a son they sort of adopted early on — this Republican activist billionaire paying over $6,000 a month. Are we talking about crossing a line between civil and criminal liability here?

DAHLIA LITHWICK: It’s really difficult to know what Harlan Crow could be on the hook for, Amy. I certainly think we are crossing the line between ethical rules and corruption. And it’s worth noting right here that the Supreme Court has been one of the largest players in changing the definition of what corruption is, demanding that we talk in terms of quid quo pro corruption, which is a really narrow definition. That’s the Supreme Court’s doctrine in recent decades.

But I think under your question there is this question of how is it possible that Clarence Thomas is ruling on the loan forgiveness case, that Harlan Crow’s wife has a — gives to an organization, the Manhattan Institute, that has an amicus brief in that case, and that, as you say, the argument seems to be “personal charity for me, so my grandnephew can go to a fancy private school, but not for thee, all of you who need debt relief.” So, this is really like a layer cake of misconduct. And at every single layer of the cake, it is astonishing that Justice Clarence Thomas, who clearly has vested interests in every level, does not recuse.

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