Analysis: U.S. Supreme Court justices take gifts — then raise the bar for bribery prosecutions
Supreme Court Justice Neil Gorsuch, pictured here with Justice Brett Kavanaugh, is the latest justice with questionable financial ties to a person with business before the court. Getty Images.
Justice Clarence Thomas might be the most egregious when it comes to taking gifts and not disclosing them, but he’s not alone. His colleagues on the U.S. Supreme Court also haven’t been shy about taking fancy freebies from rich people — many of whom have an interest in the actions of the court.
The justices seem not to think it’s fair to have to entertain themselves on their $268,000 salaries that are in addition to whatever other income they get from book deals, investments and other sources. So it might not be a coincidence that in 2016, those same justices unanimously voted to make it a lot harder to prosecute public officials — including themselves — for accepting bribes.
No matter how much fun they are to hang out with, average people aren’t likely to be offered a $500,000 Indonesian vacation on a private jet and a superyacht. Nor is a billionaire likely to buy your mother’s house, pour tens of thousands into it, and let her live there rent-free.
But when ProPublica exposed those regal freebies — and the fact that Thomas failed to disclose those and others for decades — the justice in a statement characterized them as just the kinds of things good buddies do when they want to hang out. And he implied that his status as a Supreme Court justice had nothing to do with it.
Describing Texas billionaire and conservative activist Harlan Crow and his wife as among Thomas and his wife’s “dearest friends,” Thomas wrote, “As friends do, we have joined them on a number of family trips during the more than quarter century we have known them.” He added that he had no conflict because it was “personal hospitality from close personal friends, who did not have business before the court.”
Thomas made the claim even though Crow has spent at least $14.7 million on conservative causes over the years — including to move the judiciary to the right. That figure doesn’t include any 501(c)(4) dark money contributions by Crow that Thomas helped to facilitate with his affirmative vote in the 2010 split decision, Citizens United v FEC.
Crow didn’t make Thomas’s acquaintance until he was on the Supreme Court and it seems unlikely that their friendship would be so dear if Thomas’s powers were limited to working a cash register — the most common job in the United States — as opposed to having a potentially dispositive say over the meaning of the U.S. Constitution. And in his statement, Thomas didn’t mention that as part of many of the freebies he’s taken from Crow, the justice was in close proximity with other conservative activists who also have had business before and a strong interest in the makeup of the federal courts.
Across the ideological spectrum
Thomas has been far from alone on the court in enjoying the largesse of the uber-wealthy.
Late liberal Justice Ruth Bader Ginsberg in 2018 took a trip to Israel compliments of billionaire Morris Kahn, who had business before the court just a year earlier.
Scalia’s more-liberal colleague, retired Justice Stephen Breyer, took at least 225 subsidized trips between 2004 and 2016. They include a 2013 trip to the exclusive island of Nantucket compliments of private-equity billionaire David Rubenstein, Gabe Roth, executive director of the group Fix the Court, reported.
Those were some of the 1,309 trips Supreme Court justices took compliments of others between 2004 and 2019, according to a list compiled by the watchdog group Open Secrets. That’s nine trips per justice, per year, and it’s unlikely they stayed at the Holiday Inn on most of them.
And those are just the ones that justices disclosed. It’s unclear how many — like decades of Thomas’ travels — have been unreported, or whether the justices will suffer any consequences for not reporting them.
Disturbing examples of such non-disclosure continue to flow in — thanks to investigative reporters, not the justices themselves.
Politico recently reported that Justice Neil Gorsuch had been trying for some time in 2017 to unload a 40-acre property he co-owned in Colorado. Nine days after he was confirmed to the Supreme Court, the property was purchased by the CEO of a law firm that has had numerous cases before the court — and whose clients Gorsuch has sided with much more often than not.
Gorsuch disclosed that he made between $250,000 and $500,000 off of the sale, but he left blank the box that would have informed the public of the identity of the person who paid the money, and who had a lot of lucrative business that Gorsuch would preside over, Politico reported.
Despite all the ethical lapses, at least some justices from across the ideological spectrum are indignant at the notion that their conduct should be scrutinized. When Sen. Chuck Grassley, R-Iowa, in 2006 proposed an inspector general to keep an eye on the justices, liberal icon Ginsberg likened it to “Stalinism, saying that such oversight ‘is a really scary idea’ that ‘sounds to me very much like [how] the Soviet Union was,’” Roth of Fix the Court wrote.
Watering down bribery prosecutions
In the midst of such hostility to oversight, the court in 2016 took up McDonnell v United States. Perhaps not surprisingly, it sided in its decision with a powerful public official who had taken expensive gifts from a wealthy friend who was pushing a special interest.
Former Virginia Gov. Bob McDonnell and his wife had been convicted in 2014 on charges of bribery. But the McDonnells appealed their convictions, arguing that federal prosecutors failed to show that McDonnell undertook an “official act” in return for the presents they received.
The couple got about $175,000 worth of stuff from Jonnie Williams, including rides in a private plane, a Rolex, $20,000 worth of designer clothing, a $50,000 loan and $15,000 for their daughter’s wedding. Williams, the CEO of Star Scientific, was trying to market a nutritional supplement made from a compound found in tobacco, and he wasn’t having much luck interesting the scientific community in conducting research.
To help, the governor directed Williams’ proposals for research at the Medical College of Virginia and the University of Virginia School of Medicine to his director of health and human services. When that didn’t bear fruit, McDonnell hosted a lunch at the governor’s mansion and brought in university officials. Even so, the actual scientists were skeptical of Williams’ claims and didn’t embrace his supplement.
As a general matter, governors have great sway over state budgets and public universities partly depend on state funding. Governors also often appoint public universities’ governing boards — in the case of the University of Virginia, the Board of Visitors. So, when McDonnell pushed Williams’ supplement on his health director and on university officials, it probably wasn’t easy for them to say no.
But in writing for the Supreme Court in the case, Chief Justice John Roberts said McDonnell’s attempts to help Williams didn’t amount to an “official act.”
“An ‘official act’ is defined as ‘any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit,’” Roberts wrote.
Somehow, he and the other eight justices couldn’t see it as an abuse of the governor’s place of trust or profit when he brought subordinates and quasi-subordinates to his official residence to hear a new-age medical pitch from a guy who had given the governor $175,000 in fancy presents. Perhaps the gifts the justices themselves were taking had influenced them in ways they didn’t see.
Out of touch
In an interview last week, Roth of Fix the Court said the Supreme Court decision in McDonnell made it a lot harder to prosecute public officials in federal court for taking bribes.
“I think (the decision) appears to be a simultaneously textualist and tone-deaf decision,” he said. “The opinion is focusing on what the parameters of what the law are as written by Congress, but it’s never that easy. It’s never just, ‘Oh, hey, I’m going to do a bribe.’”
Perhaps making it seem extra tone-deaf lately has been Roberts’ continued inaction as Thomas’s failure to report millions in gifts and payments to his wife from conservative groups is serially revealed.
In concluding his opinion in McDonnell, the chief justice seemed to express his own hostility to oversight, slamming federal prosecutors for their “boundless interpretation” of bribery laws.
The claim seems hard to square with exploding dark money expenditures by undisclosed special-interests as federal corruption prosecutions have gone down in recent decades. But Roberts implied that the feds are out of control when it comes to charging public officials with taking bribes.
“There is no doubt that this case is distasteful; it may be worse than that,” Roberts wrote. “But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute. A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this Court.”
Recent revelations about the lavish freebies Thomas and his colleagues have been accepting cast the decision in a new light. Roth said that when the McDonnell decision was handed down seven years ago, the public wasn’t as sensitized to the fact that many on the court are taking ritzy presents from oligarchs, granting them extended facetime and then pretending it doesn’t influence their decisions.
“I was screaming about this in 2016,” he said. “Now folks are getting wise to the fact that the lavishness is not restricted to state officials in Virginia, but it has in fact infected the highest court. It is an incredibly elite, incredibly out-of-touch institution.”
Take me out to the ballgame
Roberts illustrated such a lack of self-awareness in his opinion.
He used an example of a social interaction that overzealous bribery prosecutions might dampen that is wildly different from Thomas’ trip to Indonesia, Ginsberg’s to the Holy Land and Scalia’s many, many luxurious hunting vacations that came compliments of billionaires. What’s wrong, Roberts asked, with constituents wanting to take an official to a good, old-fashioned ballgame?
“The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns — whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm,” the chief justice wrote. “The Government’s position could cast a pall of potential prosecution over these relationships if the union had given a campaign contribution in the past or the homeowners invited the official to join them on their annual outing to the ballgame.”
When wealthy patrons shower justices with gifts — the likes of which average Americans will never see — it’s only logical to think they expect something in return, Roth said.
“The justices say they only care about what they see or read that exists within the four corners of the page,” he said. “But clearly if someone is taking the time to get to know someone once he’s already on the court you can’t help but expect there to be some sort of quid pro quo or ulterior motives there.”
He added that it’s up to Congress to fix the problem.
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