Justice Clarence Thomas under a cloud

Should the precedent of Justice Abe Fortas' resignation in 1969 be followed?

Supreme Court Justice Abe Fortas resigned under a cloud in 1969 hounded by Republican Members of Congress and threatened with criminal prosecution by Attorney General John Mitchell (later imprisoned for complicity in Watergate crimes).

Fortas was tainted by twin financial irregularities. He had received $15,000 for a nine-week seminar hosted by American University School of Law paid by private donations from former clients solicited by a Fortas’ former law partner Paul Porter: two directors from Braniff Airways, two department store magnets, and the chairman of the New York Stock Exchange.

Further, Fortas had negotiated an annual $20,000 retainer for life to advise the Wolfson Foundation, the offspring of convicted stock swindler Louis Wolfson.

Fortas had not committed any ethical violations. There was zero evidence to support criminal charges. Fortas resigned nonetheless, explaining to Washington Post editor Benjamin Bradley, “If I stayed on the Court, there would be this constitutional confrontation that would go on for months. Hell, I feel there wasn’t any choice for a man of conscience.”

How does the case of Justice Clarence Thomas as reported by ProPublica stack up with Fortas’? Does the Fortas precedent call for Justice Thomas to resign? You decide.

Justice Thomas has not denied that he received a cornucopia of lavish in-kind gifts from Republican billionaire Harlan Crow over a period of two decades. Mr. Crow has acknowledged his munificence.

Among other things, ProPublica reported, “In late June 2019, right after the U.S. Supreme Court released its final opinion of the term, Justice Clarence Thomas boarded a large private jet headed to Indonesia. He and his wife were going on vacation: nine days of island-hopping in a volcanic archipelago on a superyacht staffed by a coterie of attendants and a private chef.

If Thomas had chartered the plane and the 162-foot yacht himself, the total cost of the trip could have exceeded $500,000. Fortunately for him, that wasn’t necessary: He was on vacation with real estate magnate and Republican megadonor Harlan Crow, who owned the jet—and the yacht, too.”

Thomas’ nine-day all expenses paid vacation was just the tip of the iceberg. For more than two decades, Thomas has accepted luxury trips virtually every year from billionaire Crow, vacationing on Crow’s superyacht, flying on Crow’s Bombardier Global 5000 jet, attending the Bohemian Grove all-male exclusive retreat, luxuriating at Crow’s spacious ranch in East Texas and at Crow’s private resort in the Adirondacks.

The collective value of the gifts Thomas has received from his billionaire Republican benefactor towers over the paltry sums received by Fortas for his seminar at the American University Law School and the Wolfson Foundation. Do you think it creates the appearance that Thomas would favor the 1 percent over the 99 percent? Does it create the appearance that there are two systems of justice: one for the rich and one for the poor? Very few read Supreme Court opinions searching for philosophical or other biases. For most, appearances are reality as Plato instructs in the Allegory of the cave.

As famous columnist Robert Novak wrote in his memoir, a journalist never criticizes his sources: “What you did not find in my columns was criticism of Karl Rove. I don’t believe I would have found much to criticize him about even if he had not been a source, but reporters—much less columnists—do not attack their sources. . . .”

Similarly, can Thomas be expected to bite the hand that feeds him?

In responding to the ProPublica article, he did not deny the gifts. He did not state he would refuse Mr. Crow’s gifts in the future. He argued only that public reporting of the gifts were not required.

Crow’s gifts (which continue to shower on Thomas like manna from heaven ) show an insensitivity to appearances compounded by his declination to recuse himself from cases connected to the political handiwork of his wife Ginny. Moreover, they are inconsistent with Thomas’ professed preference for frugal, spare vacations and travel as elaborated in a recent interview in a documentary about his life: “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. I come from regular stock, and I prefer that—I prefer being around that.”

Should Thomas resign based on the Fortas precedent?

George Washington reportedly urged at the 1787 constitutional convention, “Let us raise a standard to which the wise and honest can repair.”

Does Justice Thomas’ conduct reported by ProPublica satisfy that standard?