Supreme Court Justice Clarence Thomas is a one-man scandal mill, increasingly exposing Chief Justice John Roberts for the chump he is by the day. Roberts isn’t just covering up for Thomas. He has failed to disclose income and recuse himself from cases, stemming from his prominent spouse’s work. Justice Amy Coney Barrett also has some spousal conflict issues, and Justices Neil Gorsuch and Samuel Alito aren’t immune from conflict of interest concerns. In short, the Supreme Court’s conservatives are undermining the Supreme Court’s legitimacy.
Despite these recent revelations, Roberts refused to talk to the Senate Judiciary Committee about the blatant ethics abuses and he denied that there’s even a problem on the court, which is not bound by the same code of conduct that the rest of the federal judiciary has to honor. That’s not a problem for Roberts or for Republicans, but it is for Senate Democrats looking for ways to flex their check-and-balance muscles over the court.
Roberts had to know there were more shoes to drop in the seemingly endless Thomas-Crow affair. ProPublica delivers, with a new story alleging that the Texas billionaire and big GOP donor paid at least several years of private school tuition for Thomas’ ward, a grandnephew he took in at age 6. That’s on top of the lavish gifts, yachting trips, and private jet flights—and the fact that Crow is Thomas’ mother’s landlord, gifting her free rent after buying the home from Thomas. You know that Thomas knows how stinky all that largesse from Crow is by the fact that he kept it all secret, failing to disclose any of it. Even when he was declaring another $5,000 gift from someone else to pay for his nephew’s education, Thomas was keeping his sugar daddy Crow a secret.
But as long as Sen. Dianne Feinstein remains absent because of a health problem, Sen. Dick Durbin’s Judiciary Committee is stymied from doing anything about it. So Democrats on other committees are stepping up, and they’re starting where it counts: the power of the purse. The court operates on funds approved and provided by Congress, which gives Congress the power to make demands.
Sen. Chris Van Hollen says he’s looking “at all the options” for imposing reforms on the court. The Maryland Democrat chairs the Financial Services and General Government Appropriations Subcommittee, the one in charge of the Supreme Court budget. Fifteen of Van Hollen’s Democratic colleagues, including six who sit on the Judiciary Committee, wrote to him at the end of March—even before some of the blockbuster stories about Thomas broke—asking him to withhold $10 million of the court’s funding unless it adopted an ethics code.
The demand is not an unusual one. Federal courts have ruled that “it is completely appropriate and proper for the legislative branch to use the power of the purse to influence the other branches in doing what they ought to be doing.” It happens all the time with the executive branch, and the co-equal judicial branch isn’t an exception.
That’s one avenue Senate Democrats can use for exposing the problem at the court—the problem Roberts refuses to acknowledge—but it’s not the only path. Sen. Ron Wyden, who chairs the Finance Committee, opened another. He asked Thomas’ patron, Harlan Crow, for a detailed accounting of all the gifts, travel, and real estate deals he’s provided Thomas.
Wyden’s committee oversees the Internal Revenue Service, and that’s the implicit threat behind his request: The court might not require that Thomas disclose all these gifts, but the tax code “provides no such exceptions for transfers of a gratuitous or personal nature.” Congress can get those tax records to find out if Crow is following tax law. While Wyden didn’t explicitly make that threat or open an official investigation, he has the power to do it.
The slim majority Democrats have in the Senate—even slimmer without Feinstein’s vote—makes it harder for them to act. But every time they threaten to use their power, it puts Republicans on the defensive.
It’s a good tactic, and it’s working. Here’s Texas Republican Sen. John Cornyn's admission that there’s a problem with the lavish gifts Thomas accepted:
“Well, that's why I say that I think the Court would do well to consider this experience in coming up with perhaps some additional reforms, but this is not something, an appropriate role for Congress.”
It’s weak, but it’s movement. He’s no longer denying that the court has a problem. That’s why Democrats have to keep up the drumbeat.
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