Editor's Note: The following debate on gifts to Supreme Court justices originally published on Divided We Fall and features perspectives from MSNBC writer and lawyer Jordan Rubin and GMU Antonin Scalia Law School adjunct professor E. Donald Elliot. The pieces were republished on IVN with permission from Divided We Fall.
Gifts to Supreme Court Justices Should Draw Scrutiny
By Jordan Rubin – Writer and Lawyer, MSNBC
Supreme Court Justice Clarence Thomas came under intense scrutiny last year for failing to disclose lavish gifts from real estate mogul Harlan Crow. Among the questions raised by ProPublica’s reporting on the Justice and the billionaire was whether Thomas had violated disclosure requirements. That, in turn, prompted lawyerly distinctions by Thomas and others defending his behavior.
For the purposes of this debate, let’s put aside whether those explanations were persuasive. The question of disclosure obscures the bigger issue: that gifts to Supreme Court Justices are accepted in the first place.
Disclosure is a Symptom of the Problem
There’s no need for powerful public servants, such as Supreme Court justices, to receive gifts from non-family members. Indeed, there’s good reason for them not to, especially if they want to play it safe in the eyes of an American public that views the court skeptically these days.
Let’s take a step back and think about the function of disclosures. Underlying them is an implication that there may be something potentially untoward about the item being disclosed. At a minimum, disclosures expose a connection between the gift giver and gift recipient, of which the public might otherwise be unaware. Why not prevent that connection from forming to begin with?
Naturally, people are grateful for gifts. Foregoing them would therefore eliminate the need to consider whether Supreme Court Justices, whose rulings affect nearly all aspects of American life, might feel indebted (even unconsciously) to the gift giver and whatever ideology they support or might be seen as supporting. Why not remove the baggage of gratitude from the equation and let the justices focus solely on judging to the greatest extent possible, without the potential appearance of outside influence?
Even Small Gifts to Supreme Court Justices Could Raise Concerns
One possible answer to this question is that lifetime appointments insulate Supreme Court Justices from improper influence. After all, putting aside the hopefully anomalous Thomas/Crow situation (though ProPublica also uncovered Justice Samuel Alito’s undisclosed connection to another conservative billionaire): Do we really think that the Justices are swayed by comparatively small, even heartwarming, gestures, like Oprah Winfrey giving Justice Ketanji Brown Jackson flowers or a bait-and-tackle shop owner giving Justice Neil Gorsuch a fishing rod? Maybe not, but why risk the chance that the public could think otherwise?
If there’s even a slight risk in the status quo, then maintaining it should require an overriding interest in the Justices’ favor. I maintain that no such compelling interest exists. Justices are paid six-figure salaries and have the honor of serving as Justices. The privilege should be enough to tide them over for however long they choose to serve.
Is This About Gifts to Supreme Court Justices or Clarence Thomas?
By E. Donald Elliott – Distinguished Adjunct Professor, Antonin Scalia Law School, George Mason University
Supreme Court Justice Clarence Thomas was my classmate at Yale Law in 1974. I have seen him on only a few occasions since we graduated, but I can testify from personal experience that he is one of the sweetest, kindest, most genuine gentlemen I have ever known. He is well known in Washington as the only member of the Supreme Court who knows the name of every single person who works at the Court—including the names of all their families.
I disagree with many of Thomas’ decisions as a Supreme Court Justice. He is an “originalist” who believes that words should be interpreted in accordance with their original public meanings. I, on the other hand, believe that broad, intentionally vague words like “liberty” and “freedom of speech” used in the Constitution have to change with the times.
In Defense of Justice Thomas
Despite our disagreements on judicial philosophy, I respect Justice Thomas—both as a person and as a Justice. So, I couldn’t say no when asked to defend his conduct in accepting, and failing to disclose, trips on a private plane to joint vacations from his rich friend Harlan Crow.
First, the Supreme Court did not have a code of ethics precluding travel with a close friend who did not have any cases pending at the Supreme Court. Things like this, which aren’t technically a “conflict of interest” but might create an “appearance of impropriety,” were left to the good judgment of the Justices. The gift wasn’t illegal at the time, but it should have been disclosed. Justice Thomas’ career on the bench shows he is good at reading laws literally, but as for following their spirit? Not so much.
Second, Justice Thomas eventually amended his statutorily required disclosure form for 2019 to include most of the trips. While other kinds of gifts from friends were exempt, free travel was not and should have been disclosed. Unfortunately, even when correcting his disclosure form, Justice Thomas accidentally omitted three trips while disclosing many others, a point played for all it is worth and then some by Democratic Senator Dick Durban, chair of the Senate Judiciary Committee.
Finally, Justice Thomas’ errors were not his alone. The Brennan Center, a left-wing think tank, concedes that many Justices have done similar things in the past: “Over the last two decades, almost all members of the Supreme Court have been criticized for engaging in behaviors that are forbidden to other federal court judges, including participating in partisan convenings or fundraisers, accepting expensive gifts or travel, making partisan comments at public events or in the media, or failing to recuse themselves from cases involving apparent conflicts of interest, either financial or personal.”
The Real Problem is Deeper than Gifts to Supreme Court Justices
No, I don’t think that “everybody does it” is a valid defense. There is an old adage that “Caesar’s wife must be above suspicion,” which applies to Supreme Court Justices as well. I wish the mistakes discussed above had never happened. I suppose we all do—probably including Justice Thomas—because it brings the Court into disrepute and undermines its legitimacy.
These events raise the question, why are the media and other advocates for Democrats so outraged by Justice Thomas traveling with a wealthy friend who doesn’t have any cases pending before the Court but not ethical lapses by the more liberal Justices? Perhaps they disagree with the way Justice Thomas votes on the Court or some of the Court’s recent decisions—particularly the Dobbs decision that overruled Roe v. Wade.
The real problem here isn’t Justice Thomas riding on a wealthy friend’s private plane; it is a Supreme Court majority that is out of step with much of the country due to the antiquated way we appoint Justices.
About The Authors
Jordan Rubin is the author of the narrative nonfiction exposé “Bizarro: The Surreal Saga of America's Secret War on Synthetic Drugs and the Florida Kingpins It Captured." Jordan is a former prosecutor for the Manhattan District Attorney's office, where he was assigned to the Office of the Special Narcotics Prosecutor. After several years trying cases and conducting investigations, Jordan went to Washington to cover the Supreme Court for Bloomberg Law. He now works for MSNBC, providing written and on-air legal analysis.
E. Donald Elliott has been a professor at Yale Law School since 1981, and now also teaches part-time as a Distinguished Adjunct Professor at the Antonin Scalia Law School. Elliott has advised six presidential campaigns and teaches and writes in fields as diverse as administrative and constitutional law, civil procedure, and energy and environment. He is the author or co-author of over 80 articles and eight books and writes regularly on popular legal topics for The American Spectator. Elliott also has practical experience as the head of the environmental practice groups at four large international law firms. He served as assistant administrator and general counsel of the EPA, 1989-1991.