When news broke last week, by way of dogged reporting in ProPublica, that Justice Clarence Thomas had accepted decades’ worth of hospitality from billionaire Republican donor Harlan Crow, that this same donor had funded his wife’s legal and political activities and in fact helped pay her salary, and that Thomas had disclosed none of this, our suggestion that the justice had clearly broken the law was dismissed as left-wing “smear.” ProPublica’s new reporting, dropped on Thursday, showed that the same billionaire donor, Harlan Crow, spent $133,363 purchasing several properties co-owned by Thomas, and that these sales were never disclosed. As our colleagues at Slate confirmed this week, Thomas’ mother actually still lives in the property owned by Crow, to which he has made valuable improvements (in addition to buying the house next door and dispensing with previously troublesome neighbors). Unlike the rules around the undisclosed luxury travel reported last week, ProPublica could not find a single ethics expert willing to squint and hop on one foot in a way that would make the failure to report the real estate transaction seem arguably lawful. The court has not responded in any way to the latest revelations. Defenders of Justice Thomas somehow continue to urge that this is a smear campaign by liberals.
In a way, the fact that money went from Harlan Crow’s pocket to Thomas’ mom’s house seems less horrifying than last week’s superyachts and half-million-dollar luxury air travel. Who among us wouldn’t want a billionaire to evict the noisy neighbors who were keeping our mothers up late? But it helps to parse out what mattered about both Thomas stories and what is mostly a distraction. That Thomas is a “hypocrite” for claiming to like parking outside Walmarts to commune with real people while secretly indulging his taste for luxe global travel? Doesn’t really matter. Harlan Crow’s penchant for cunningly little embroidered Nazi table linens? Weird, surely, but materially inconsequential. The Wall Street Journal editorial board’s claim that Thomas is a good and great man being tarnished by “left-leaning” ProPublica (which, let’s recall, is actually founded by former Wall Street Journal folks)? Whatever.
What mattered last week and what still matters this week is whether the Crow/Thomas dealings can be seen as classic quid pro quo (or perhaps quid pro Crow) corruption. We too often think this can only happen in a scene in which cartoon ducks with big sacks of cash pay politicians to do their bidding, which is never how this actually happens. And the longstanding defense to those claims is that Justice Thomas is too independent a thinker and jurist to be influenced by gifts of bibles and vacations and rent-free housing. But what this new reporting shows—and what actually matters—is that Crow and those like him, who have poured billions of dollars into funding cases before the court, campaigns to seat certain justices on the court, and crusades to keep other justices off the court, turn out to just own the whole building. In tandem with the Leonard Leos and Mark Paolettas who have been rendered in art for all eternity, the Harlan Crows are the actual landlords of the houses where the six conservative justices seemingly get to live rent-free.
If you’re defending Thomas’ unlawful refusal to disclose these transactions by saying he’s too famous/powerful/important/busy/put-upon to disclose these transactions, you are missing the point. Disclosure laws aren’t tawdry “gotcha” traps that form the basis of smear campaigns. Disclosure rules are the only means of transparency in a world of increasingly broken democratic systems. Citizens United and its dismantling of campaign finance reform? Justified on the grounds that disclosure rules suffice to ferret out corruption. We don’t demand that public figures deal honestly with the public because we are mean; we do it because law and democracy rise and fall on knowing who paid who for what.
On the issue of disclosure, Citizens United was actually an 8–1 decision: Eight justices voted to uphold mandatory disclosure requirements for corporate electioneering—every justice except Justice Thomas. In a solo dissent, he railed against disclosure laws, citing California’s Proposition 8 as his chief example. California law, if you recall, had compelled the disclosure of all donors to the campaigns for and against Prop 8, a proposed same-sex marriage ban, who gave more than $100. Many residents used this information to boycott businesses, lobby fellow citizens, and stop associating with anti-gay Californians—all forms of expression protected by the First Amendment. Indeed, far from silencing speech, these disclosures promoted it. Yet Thomas railed against these First Amendment activities as an assault on the First Amendment. For support, he cited a small number of legitimate “threats of physical violence,” lumping them in with “reprisals,” “ruined careers,” and (perfectly lawful) “warning letters” about the social and political costs of contributing to the campaign.
Thomas revived these same concerns in 2010’s Doe v. Reed, when he took his theory of disclosure as bullying a step farther: Citizens who participate directly in the lawmaking process by signing a petition for a ballot initiative or referendum, he asserted, have a First Amendment right to conceal their identity from the public. That case, too, involved a ballot question seeking to disallow marriage equality: A group of signatories who had helped get the question on the ballot wanted to hide their involvement from their fellow citizens. Thomas was once again the sole justice to vote against disclosure. He complained that the requirement chilled signatories’ free speech by subjecting them to “threats, harassment, or reprisals.” In 2021, Thomas reiterated his belief that the Constitution protects a near-absolute “right to associate anonymously.” In practice, that meant an ability to donate massive sums to deeply political organizations and conceal your identity from the state.
What’s really remarkable about these opinions is that they equate genuine illegal conduct (like true threats and harassment) with constitutionally protected public criticism. In these cases, Thomas lumped together actual physical violence with mere verbal “reprisals.” And he totally ignored the competing First Amendment interests in using disclosure information to engage in free expression. In short, Thomas insisted that a person’s right to anonymously influence disputes of great public interest—by supporting a political candidate or campaign, or even engaging in lawmaking itself—outweighs other people’s right to know that you did so and criticize you for doing so. This thin-skinned vision of free speech actually prompted one of Justice Antonin Scalia’s best opinions, a rebuke to Thomas’ desire to shield the egos of snowflakes:
There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
It now turns out Justice Thomas was applying this theory of governance to his own life the whole time. His hostility toward disclosure laws reached all the way to the federal statute that obligated him to report many of Crow’s lavish gifts—including, without a milligram of doubt, the infusion of cash from the real estate transaction. The solo opinions ranting about the evils of disclosure requirements were, it appears, a kind of projection, a veiled defense of his own refusal to tell the public about Crow’s beneficence. Revealing these gifts would surely result in public criticism, even “reprisals” from the citizenry, in the form of speech. And to Thomas, such criticism is an intolerable cost of participating in public life; an evil so great that he would break the law to avoid it.
In the coming days, you will hear a lot of people who purport to care about the law and lawfulness and rules and the close reading of statutes explain that none of that matters because none of it applies to Clarence Thomas. The idea some kinds of people are simply too powerful to disclose what they do? That’s a self-serving argument the justice has been hatching a long time. It’s an elegant trick of history and he will profit from that, too.