Justice Thomas’s Ethics

When Justice Clarence Thomas acceded to the high court, he swore what’s called the Judicial Oath. It has always made us uncomfortable. The oath binds all our judges to “administer justice without respect to persons” and “do equal right to the poor and to the rich” and to perform all duties “incumbent upon me” as Associate Justice of the Supreme Court “under the Constitution and laws of the United States.”Are we alone in thinking that the oath is off-putting? We ask because ProPublica is just out with an exposé of Justice Thomas’s friendship with the real estate magnate Harlan Crow. ProPublica was founded by a billionaire from the residential mortgage lending industry, which is often involved in litigation. ProPublica reports that Justice Thomas has failed to disclose, among other things, trips on a jet Mr. Crow owns and a yacht.Just for the record, we have no objection to ProPublica. It’s a pioneering liberal news agency established as a public charity. It’s won more Pulitzers than John Peter Zenger and Johannes Gutenberg combined. We don’t worry about ProPublica receiving backing from a wealthy banking magnate any more than we worry about Justice Thomas receiving gifts from a real estate baron.By all accounts the friendship between the Justice and Mr. Crow appears to be a genuine one, ProPublica reports. The friendship was first reported in a Times scoop that appeared under the headline “Friendship of Justice and Magnate Puts Focus on Ethics.” That appeared more than a decade ago. Yet neither Congress nor the courts appeared, insofar as we can tell, to put much stock in the scandal.What ProPublica has done is add more details to the story, but neither publication uncovered what for us would be the basis of a real scandal — evidence that Justice Thomas was receiving gifts from an individual with a case before the court on which Justice Thomas was serving. Then again, too, Justice Thomas’s fellow sages might require proof of an actual quid pro quo, a point the Supreme Court made in, say, McDonnell v. U.S.That was the case in which the Supreme Court vacated the conviction of Governor McDonnell of Virginia. It raised the standards for proving corruption. Even if Justice Thomas did receive gifts and transportation from Mr. Crow, McDonnell makes us wonder whether, if the matter ever got before the Nine, justices might still wonder where is the proof that Justice Thomas tilted the court in return.It happens that the very year that Justice Thomas went on the court, a former justice, William Brennan, disclosed that he had taken something like $140,000 in gifts from a Washington D.C. tycoon, Charles E. Smith. Smith also forgave $120,000 of a $170,000 mortgage on a condominium, the Times reported. “The gifts reflected only the affection and generosity of a dear friend,” Justice Brennan explained.“The code of conduct for Federal judges permits judges to receive gifts and loans from relatives and close personal friends,” the Times reported at the time. It referenced an “explanatory statement” accompanying Justice Brennan’s disclosure saying that neither Mr. Smith nor his real estate companies had had any business before the High Court. Brennan wrote the opinion in Roe v. Wade, and still no one raised much of an eyebrow.Which brings us back to the Judicial Oath. Why are the justices required to swear to “do equal right to the poor and to the rich”? The poor and the rich are the only two groups singled out. Why not the black or the white, or the Muslims or the Christians or the Jews. Or the man and the woman. Why is it only the rich and the poor by which the justices must swear to do right? What’s the middle class — chopped liver?We get that this isn’t about Justice Thomas’s “ethics.” This is about Justice Thomas’s conservatism, the same thing that the brouhaha at his confirmation hearing was about 22 years ago. Since then, Justice Thomas has emerged as a towering figure, whose opinions have sketched a principled view of the Constitution. The left wants to get him off the court, lest the Democrats lose the Senate and even the White House in 2024.

Justice Thomas’s Ethics

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