Biden should order Clarence Thomas’s cases to be reviewed

There are calls for the controversial Supreme Court justice to be impeached – but there is zero chance of that happening. The president should take a different course of action

Noah Berlatsky
Tuesday 11 April 2023 15:24 BST
US Supreme Court's Clarence Thomas under fire for allegedly accepting lavish trips

Supreme Court Justice Clarence Thomas, one of the most powerful people in the country, has been implicated in a grotesque corruption scandal. Last week ProPublica reported that Thomas has for decades gone on luxury vacations paid for by real-estate billionaire and Republican donor Harlan Crow. Crow is well-known for his efforts to push US courts to the right.

Thomas has not heard cases directly involving Crow, but he has heard cases involving the real estate industry. He’s also heard cases involving briefs from the American Enterprise Institute, a conservative think tank. Crow sits on its board.

Thomas allowing himself to appear compromised strikes at the heart of US democracy and makes a travesty of justice in this country. If the wealthy can wine and dine Supreme Court justices, what hope do ordinary people have of a fair hearing? Are we ruled by laws or by oligarchs? No one elected Harlan Crow to anything. Why should he get unlimited access to influence Clarence Thomas?

That’s why it’s imperative for President Joe Biden to immediately announce a review of all cases involving Thomas and identify ones in which there are egregious conflicts of interest. The administration should then consider refusing to enforce those decisions.

Thomas did not disclose his trips; in an unconvincing response, the justice said he was not required to do so. But the fact is, there’s little to no oversight of the Supreme Court. Justices are supposed to behave ethically, but they don’t have to, and there are few methods to make them. A federal panel of justices dismissed 83 ethics complaints against Brett Kavanaugh when he was elevated to the Supreme Court, because there’s simply no mechanism for holding Supreme Court justices accountable in any way.

Some progressive lawmakers have called for Thomas to resign. He should, but he won’t, because there’s no way to make him. Similarly, some Democrats in Congress have said they want to introduce impeachment articles. But in a Republican controlled House, the chances of impeachment are zilch, and also zero.

There are a couple ways to keep the pressure on Thomas though. The Democratic-controlled Senate could launch an investigation—the Judiciary committee has said it is planning to try to pass ethics rules for the Supreme Court.

The swiftest way to keep pressure on Thomas, and to ensure actual accountability, though, is for Biden to review and evaluate all court decisions in which Thomas was involved.

A federal investigation into Thomas’s decisions would be valuable in itself. Which judgements exactly involved AEI amicus briefs? Which decisions directly affected Crow’s real estate interests? Where was Thomas the swing vote? A list of such cases would clarify the extent of the corruption of the judiciary. It would provide concrete examples of instances in which a radical right wing billionaire’s interests may plausibly have affected the everyday lives of Americans. It would keep pressure on Thomas and on Chief Justice John Roberts to address this ongoing problem on the court.

But, once we know which cases precisely Thomas has compromised, Biden could go further.

Progressives have been pointing out for some time that the executive branch has some discretion to refuse to enforce lawless orders. This week, Senator Ron Wyden and Representative Alexandria Ocasio-Cortez both argued that Biden should ignore US district judge Matthew Kacsmaryk. Kacsmaryk decided, with no precedent or basis in law, that he had the power to overrule the FDA and ban abortion drug mifepristone.

There “is no way this decision has a basis in law,” Wyden said. He added that the FDA “has the authority to ignore this ruling, which is why I’m again calling on President Biden and the FDA to do just that.”

The logic here also applies to any Supreme Court cases in which Thomas was compromised by flagrant conflict of interest. Upholding corrupt rulings—or rulings which have the appearance of corruption—doesn’t advance the rule of law. It undermines it. The Constitution demands due process for all. The relationship between Crow and Thomas makes it impossible to be sure that we are all equal before the law . The executive branch is failing in its duty if it enforces decisions so tainted with the appearance of corruption.

Refusing to enforce compromised decisions would also put pressure on Thomas to recuse himself in future cases, and might even push him to resign. Currently, he has no reason not to simply stay put and continue to push his and, some might think, Crow’s ideological agenda. But if he knows that his ethical failures could undermine his power, his incentives change. He would be forced to recognize that his behavior could damage his cause, and the cause of his billionaire benefactor. So maybe he would change his behavior.

Biden is cautious, however. He and many other Democrats fear pursuing such an aggressive policy. They don’t want to delegitimize the court; they don’t want to precipitate a Constitutional crisis.

But the court is already delegitimized, and we already have a Constitutional crisis. Right-wing oligarchs are openly tossing money in the direction of justices. Right-wing ideologues masquerading as justices are lawlessly tossing out decades of law and effectively abrogating the executive branch. Rule by robed theocrats isn’t democracy. It’s tyranny. It’s time for Biden and the Democrats to deploy some checks and balances and restore the rule of law. Clarence Thomas has mangled it long enough.

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