The Most Galling Part of Clarence Thomas’ Latest Ethics Disclosure

Dahlia Lithwick and Mark Joseph Stern

SALON 
Thu, August 31, 2023 

Clarence Thomas is blaming the Dobbs leak for his taking a private jet. 

When Justice Samuel Alito responded earlier this year to reporting on his 2008 decision to accept, and not disclose, a seat on a private jet owned by a billionaire with business before the Supreme Court, his defense was that the seat he occupied “​​would have otherwise been vacant.” At the time, it seemed like the Marie Antoinette–iest legal reasoning ever advanced for taking a costly gift. On Thursday, however, his colleague Clarence Thomas went one better. In filing his delayed 2022 financial disclosure forms, the justice—who has failed to disclose dozens of private flights, luxury vacations, loans, gifts, and several real estate deals for the bulk of his time on the court—belatedly reported three 2022 trips on the private jet of his friend Harlan Crow. The reason for at least one spontaneous outbreak of private jet travel? “Because of increased security risk following the Dobbs opinion leak,” the disclosure notes, “the May flights were by private plane for official travel as filer’s security detail recommended noncommercial travel whenever possible.” You see, it’s not him. It’s you. You’re making the justices fly on private flights. Look what you made him do.

To cement the conclusion that Thomas is the real victim of the reporting around his years of nondisclosures and elisions—or, as they are now called, “inadvertent omissions”—Thomas’ attorney Elliot S. Berke attached a statement to the disclosure decrying the reporting as a “partisan feeding frenzy” against the justice. The disclosures and subsequent calls for accountability from “left wing” groups, Berke declared, amounted to “political blood sport … motivated by hatred for his judicial philosophy, not by any real belief in any ethical lapses.”

The same justices who unfailingly see themselves as the only victims in America can’t stop using their own personal safety as a get-out-of-ethics-free card. And that card, it would seem, confers powers that move backward through time and space to justify all past and future violations as well.

At the center of all this, of course, are Thomas’ billionaire benefactors—or, as Berke describes them, “personal friends who happen to be wealthy.” You see, the fact that so many of Thomas’ besties “happen to be” billionaires is incidental. As Berke puts it: “For anyone who knows him at all, it is clear that no one influences Justice Clarence Thomas’s jurisprudence. But friends are dear, close, and separate.” This is Crow’s story as well. Never mind that Harlan’s wife, Kathy Crow, sits on the board of trustees for the Manhattan Institute, which regularly files amicus briefs before SCOTUS. Surely that’s not real business before the court. Or perhaps Kathy doesn’t count as the gift giver, as the friendly offerings extended were Harlan’s alone. Or maybe the mysterious Dobbs leaker did further time traveling to force Kathy’s hand in taking a prominent position on a conservative group that churns out business before the court.

One thing is clear: Scanning the eye-popping number of corrections, updates, and amendments to Thomas’ filing induces a simultaneous sense of wonder and despair. Wonder at the sheer quantity of oopsies, covering millions of dollars’ worth of insurance policies, bank accounts, assets, luxury travel, and ultra-high-end transportation that the justice mysteriously forgot to include in past disclosures; and despair at the entitled and indignant tone of both the disclosure itself and the unhinged letter accompanying it. Berke alleges that the new report “utterly refutes” all criticism of Thomas’ ethics, when it actually validates them: If the justice had been following the law this whole time, there would be no need for pages and pages of major corrections!

And he could not possibly have been caught off guard; it was just last decade that Thomas corrected his failure to report $680,000 of income earned by his wife, Ginni. After more than three decades on the court, the justice, one might expect, would have grasped the ground rules of federal ethics law. Yet in his lawyer’s telling, his extreme noncompliance was an innocent, minor, blameless mistake in a humdrum disclosure process that’s been “weaponized” against Thomas. The excuse at the heart of Thomas’ defense is that the disclose law exempts “personal hospitality”—which, until this year, the Judicial Conference’s guidance defined broadly enough to encompass private flights and paid-for stays at private resorts. But we must stress, again, that the underlying federal statute exempts only “food, lodging, or entertainment” provided by an individual, and that at least some of Thomas’ secret gifts do not fall under the most sweeping definition of these terms. A Supreme Court justice surely has the reading comprehension to grasp this fact. And so, given the sneering and self-righteous tone of Berke’s letter, its subtext seems to be that, at some point long ago, some justices and their pals sat down in a circle, maybe in some Adirondack chairs under a totem pole, and simply decided amongst themselves that the rules as written didn’t apply to travel, gifts, and deals that would benefit them.

This sniffing that a couple of innocent filing errors are just an occupational hazard may be necessary to ward off the more obvious and sensible conclusion to be drawn here, which is that Thomas applies one standard to himself and another to everyone else—and most specifically, to capital defendants who face execution because of errors committed by their attorneys, through no fault of their own, and often without their knowledge.

In perhaps the most egregious example, 2012’s Maples v. Thomas, two lawyers at the law firm Sullivan and Cromwell volunteered to represent Cory Maples, an indigent defendant contesting his death sentence. The lawyers left the law firm and ended their representation but failed to inform their client. An Alabama court ruled against Maples automatically because his (erstwhile) lawyers failed to appear. Maples had no idea. He then inadvertently forfeited his right to appeal because the clock ran out with no filings from his lawyers—again, without his knowledge. The Alabama court sent copies of its decision to Sullivan and Cromwell, but the mailroom returned them unopened. When Maples finally discovered these mistakes, he asked a federal court for relief, pointing to his lawyers’ blunders. A lower court ruled against him, but the Supreme Court sided with Maples, declaring, “A client cannot be charged with the acts or omissions of an attorney who has abandoned him.”

Thomas dissented. He, along with Justice Antonin Scalia, would’ve let the consequences of Sullivan and Cromwell’s error fall upon Maples, with the resulting death penalty as a consequence. Scalia and Thomas reasoned that Maples had “no right to counsel” to begin with since he had already been convicted. So, they concluded, his counsels’ mistakes did not provide cause for a do-over.

This pattern continues throughout each case involving a lawyer who messes up when seeking post-conviction relief for their client. And, to be sure, most of the oopsies are far less shocking than the conduct diminished by Thomas’ enraged attorney. In 2010’s Holland v. Florida, the defendant, Albert Holland, urged his lawyer to file a petition on time, based on his own, correct understanding of the law. Yet that lawyer missed the deadline—based on his incorrect understanding of the law. The Supreme Court ruled for Holland, suspending the deadline because of the attorney’s mistake. Thomas dissented.

Similarly, in 2015’s Christeson v. Roper, attorneys for a capital defendant, Mark Christeson, didn’t even meet with him until six weeks after the filing deadline had passed. They finally submitted their petition 117 days late. Those same lawyers then refused to seek a deadline extension based on their own malfeasance. So Christeson sought different, more competent lawyers, who did not have a conflict of interest. The lower courts ruled against him and greenlit the execution, but the Supreme Court halted his killing with mere hours to spare. Thomas dissented. Later, the court granted his request for new attorneys. Thomas dissented again.

Unfortunately, Thomas has not always been on the losing side of these cases; in fact, he wrote the majority opinion in Lawrence v. Florida, a particularly egregious 5–4 decision in 2007. The facts were depressingly familiar: A lawyer for Gary Lawrence, who contested his death sentence, missed a deadline that prevented him from seeking relief. Lawrence asked for an extension, equitable tolling, citing his attorney’s error. Thomas refused. Writing for the court, he explained, “If credited, this argument would essentially equitably toll limitations periods for every person whose attorney missed a deadline. Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel.”

Marvel at this irony: Clarence Thomas had the assistance of every lawyer he could ever want in drafting his financial disclosures. Indeed, he subtly threw some of them under the bus in his Thursday amendments, suggesting that any genuine errors can be pinned back on bad advice received from the Judicial Conference of the United States, which advises and adjudicates judicial ethics compliance and which revised its reporting requirements earlier this year in the wake of the Thomas revelations. The justice has—as is increasingly evident—ample resources to pay his lawyers, unlike the indigent defendants who are often given minimal or substandard representation by attorneys with hundreds of other cases to juggle. He also has ample time in which to comply with a standard disclosure process followed by thousands of other public officials, unlike capital defendants who face onerous deadlines with little or no information on how to meet them.

At the bare minimum, Thomas’ new filing proves that even the most powerful jurists and attorneys make errors, grievous ones, all the time. Instead of stating that with humility and offering the same grace to others, the justice has taken the opportunity to remind us that when his errors are pointed out, it’s a weaponization of the legal system by malign haters. For Thomas, equal justice under the law means that to err is human when the powerful do it, and that deciding which errors are trivial, and thus forgivable, is what makes him nothing short of divine.