A lime FrozFruit. A turkey sandwich. A pack of baseball cards. A bag of clementines.
These are just some of the gifts and offerings I turned down during my nearly two decades working in New York state government. We had strict rules regarding accepting gifts of any kind from people who had—or might potentially one day have—business before the office. The goal was not just to avoid being bribed or biased, but also to avoid even the appearance of impropriety, and we took that seriously. We also had to ask permission to engage in certain activities outside of our regular employment (like being a referee on my kid’s soccer team), and we were required to complete an annual financial disclosure form about our assets and income.
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This isn’t unusual. Most people I’ve met in public service wake up each day and do their work in a serious and ethical manner; they wouldn’t dream of accepting gifts. I recently posed a question on Twitter asking current and former government employees about rules they must follow and gifts they’ve declined. The responses are telling: Many jurisdictions have strict dollar limits in the $10 or $20 range for gifts. Public school teachers in Louisiana, for example, can’t accept a gift worth more than $25.
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The stories poured out; current and former public servants reported that they’ve refused coffee, socks, bagels, doughnuts, cake, iced tea, bottles of water, a box of tea, a plant, a matcha latte, a pen. One librarian declined a box of candy. Others turned down humble offerings, like honey from amateur beekeepers or maple syrup from a family farm.
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It’s more than a little bit galling, then, to read about the lavish trips that Supreme Court Justice Clarence Thomas has enjoyed for more than two decades, gifted below the radar by Texas billionaire real estate magnate and Republican megadonor Harlan Crow. Reporting by ProPublica revealed trips that came with free private airplanes, time spent on superyachts, adventures while island-hopping in Indonesia, and more. And it wasn’t only Crow who obtained access to Thomas through these trips: Crow’s friends from the business world and conservative think tanks also joined these parties. How can it be that ordinary people working in government are scrupulously turning down cups of coffee while Thomas is off on luxurious jaunts on a billionaire’s dime?
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It turns out that the Supreme Court doesn’t have the same kinds of ethics rules that most public servants must abide by. The theory seems to be that, given their elevated position and scrupulous judgment, they can police themselves. The one requirement that does exist (which was recently strengthened) mandates disclosure of certain kinds of hospitality, which would certainly include flights, but Thomas didn’t disclose even that—which is arguably illegal.
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But whatever the legality, the real problem here isn’t about disclosure. The real problem for our democracy is the fact that these excessive gifts happened at all. It’s one more example of how wealthy and powerful people buy access to government; how rules don’t seem to apply to people at the top; and how terribly broken and in need of reform our Supreme Court has become.
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In response to the revelations about these gifts, Thomas has offered tepid, predictable excuses about why his conduct was somehow OK, largely centered around the fact that Crow is among his “dearest friends” from way back when Thomas was a spanking new Supreme Court justice. (The friendship, notably, started after Thomas’ appointment, when he already held power potentially of use.) Crow, for his part, has denied trying to influence Thomas. Can’t two guys just be buddies? But this is about more than a strange and seemingly inappropriate friendship. It’s also a window into how decision-making can get warped by money, especially when those making the decisions are removed from the lives of regular people.
Reporters and lawmakers should comb through Crow’s business dealings and their relation to court jurisprudence over the last 20 years to figure out the extent to which Crow’s sumptuous offerings affected Thomas’ decisions in cases. Indeed, Democrats in the Senate Judiciary Committee are urging the court to conduct an internal ethics investigation and are planning a hearing in the coming days “regarding the need to restore confidence in the Supreme Court’s ethical standards.”
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“It is well past time for the Supreme Court to align with the rest of government in a proper code of ethics,” the Democrats on the committee wrote in a letter addressed to Chief Justice John Roberts.
There is a question that needs to be answered in the most linear and literal sense: Did Crow in any way have a direct financial interest in a case that’s been heard by the court? But more broadly, the damage has already been done. The Supreme Court has certainly ruled on issues of great interest to Crow over the years. (Most obvious, perhaps, is the Citizens United decision, which, in the words of the Brennan Center, “ushered in massive increases in political spending from outside groups, dramatically expanding the already outsized political influence of wealthy donors, corporations, and special interest groups.”)
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That Thomas was the frequent recipient of Crow’s lavish hospitality points to another problem: People in power, whether judges, lawmakers, or high-level public servants, shouldn’t be so far removed from the struggles of ordinary people. The ponds we swim in affect our perspective. Whatever one’s origins (and Thomas’ were humble), just being a Supreme Court justice for 30 years suggests a highly rarefied existence. But there’s rarefied and then there’s a billionaire’s superyacht. If the pond where you swim is an archipelago with private chefs and scuba instructors at the ready, how does that affect your understanding about a case involving a minimum-wage worker who’s been underpaid, or a consumer overcharged by a few thousand dollars? If your own vacations involve a private jet to New Zealand or superyacht cruise for free, can you understand the importance of national parks and monuments to ordinary Americans who want to take a break?
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There are many reasons public servants shouldn’t be allowed to accept gifts. As with so many issues these days—child labor, book banning—I cannot believe we are debating whether unreported sumptuous gifts to a high-level government figure are acceptable. As Sen. Chris Murphy wrote on Twitter: “Why can’t both opponents and supporters of Thomas’s views agree that what happened here is very wrong? Is it the conservative position that it’s ok for people with interests before the court to give expensive gifts to the justices? Do we really have to disagree on this?”
Government workers are supposed to be doing the work of the people, and gifts create the risk that public servants will act out of self-interest or with partiality toward gift-givers, leading to unfair or suboptimal outcomes. If multiple companies are bidding on a government contract, we don’t want a lesser competitor to prevail through gifts or bribery. We also don’t want gifts to create bias—or breed the kind of familiarity that becomes biased.
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Also consider, what kind of gifts can ordinary people give? What could low-wage workers, or fixed-income retirees or recently-arrived immigrants offer Thomas, even if they, too, were dear friends going back decades? Coffee cake? Honey? Maple syrup? Any offerings they could muster would be small potatoes compared with a private plane to Indonesia. People with wealth and power are always the ones with the ability to curry favor through gifts, trips, and favors, exacerbating already existing extreme disparities of access to decision-makers.
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Thomas’ receipt of such inappropriate largesse from a benefactor, compared with the careful conduct of so many ordinary public servants, evokes the famous line by hotel tycoon Leona Helmsley: “Only the little people pay taxes.” While librarians and teachers and FDA inspectors and lawyers turn down water bottles and bagels, Thomas says yes to all this? Are those pesky ethics and rules just for the little people, too? It’s demoralizing, fuels cynicism, and corrodes trust in public institutions.
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Our takeaway, as a society, about this news about Thomas shouldn’t just be a shrug about business as usual, because this isn’t business as usual. It is most unusual, as any regular public servant will tell you. It’s also infuriating that Thomas seems poised to get away with this. Will Chief Justice Roberts act, or Congress? One can hope, but it seems doubtful. And so we’ve become a country in which a billionaire can use his money and gifts to procure direct, close personal access to one of the country’s most powerful decision-makers. The only solace I can find in this sordid picture comes from the many hardworking ordinary public servants who wouldn’t dream of doing anything remotely akin to what Justice Thomas, on our nation’s highest court, has, apparently routinely, done.
Supreme Court Justice Clarence Thomas’ acceptance of expensive things and vacations is especially wild when you account for this one thing.
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