Courts

Yale Law Professor Writes Weirdest Defense Of Clarence Thomas Yet

Not sure the professor is grasping the actual issue here.

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Justice clarence Thomas Attends Forum On His 30 Year Supreme Court Legacy

(Photo by Drew Angerer/Getty Images)

It’s not that Yale professor Stephen L. Carter’s take on the Clarence Thomas scandal is entirely wrong, as much as it leaves you wondering why it needed to be written in the first place.

Justice Thomas uses his office as an ATM, but there are also members of Congress with shady finances. True! What does one have to do with the other? Not much. Who is this even for, other than the slice of the population desperately grasping for more fuel for the “both sides” fire? At the end of the article, the reader is left befuddled and wondering why Bloomberg published this extended non-sequitur besides finding another opportunity to shove “Clarence Thomas” into the search engine optimization sweepstakes.

Make no mistake, Professor Carter also makes a series of incredibly dumb claims in this article, but the core premise of “Congress needs reform too” isn’t wrong even if the treatment it gets is woefully superficial.

Consider Congress. We’ve long known that members who manage their own investments earn significantly higher returns than ordinary folk. Because of suspicion that Representatives and Senators achieved these results by trading on nonpublic information, the Congress, with great fanfare, passed legislation in 2012 to ban insider trading by its members. Shortly thereafter, with somewhat less publicity, the sparkling new rules were significantly weakened.

Sure. But did you catch the part in there where Congress did something about it? Even with a rollback of the most robust rules, this is already ahead of the Supreme Court where the Chief Justice has explicitly refused to craft any ethical rules. There’s a bit of an apples and oranges comparison here — if the public was solely concerned about politicians exploiting their offices for financial gain, then these situations are similar — but the scandal that matters is that one branch has full knowledge of ethical problems dating back over a decade and is making a public spectacle of its unwillingness to do anything about it.

As for the executive branch, the Wall Street Journal just won the Pulitzer Prize for its investigative series detailing how an astonishing 2,600 federal officials hold investments in companies whose value is affected by their decisions.

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Yes, Congress should do something about that. And it can do something about it because the system of checks and balances allows the legislative branch to address executive branch malfeasance. Just like the executive branch can police some of the insider trading that Carter flags. Meanwhile, the Chief Justice has taken the position that the other two branches lack any check or balance over the judiciary.

This story is more significant because judges are unique… though not for the straw argument reason articulated in the paper:

A common response is that although such findings about legislators or regulators are unfortunate, judges should be held to a higher standard. But frequent repetition doesn’t make a maxim true. A better argument is that those who make law should be held to universally high standards of integrity. Only small bits of law are produced by courts. Most is produced by legislators and regulators.

It’s not more important because of vague standards of judicial propriety, it’s because in the worst case scenario voters can get rid of misbehaving legislators. Incumbency advantages are real and democracy should not be the only check on ethics, but ultimately misconduct in the other branches fuel scandals that get people booted. Clarence Thomas has a job that he can use for personal enrichment and there’s little that anyone can do about it without a supermajority opposed to him in the Senate. Scandals surrounding judges matter more because absent reform, there’s practical check on their behavior.

But these are all weak, if well-meaning claims. The article isn’t afraid to trot out some real bad ones too:

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I’m not sure there’s much fire beneath the smoky ethical allegations swirling around the US Supreme Court. Justice Clarence Thomas stands accused of accepting lavish gifts from a wealthy friend….

None of this seems to violate any rules; at worst, the disclosures could have been clearer. 

As it turns out “the disclosures could have been clearer” is, in fact, the rule in question. And Thomas was on notice that he was breaking this law at least as far as Ginni taking payments from Leonard Leo for years. Someone should make sure Carter hasn’t developed carpal tunnel from all that hand-waving.

For the record, in the ellipse, Carter downplays Gorsuch’s property deal and would later throw water on the idea that Sotomayor and Gorsuch should not hear cases involving their publishers. We generally agree and think tossing these together with the stuff Thomas is accused of doing undermines the seriousness of the charges.

But, yes, the government as a whole should be better about ethics. As Professor Carter says, “we should demand it everywhere.” Fine. But what did this article actually accomplish? Because all I see are some unsubstantiated claims that everything surrounding Thomas is “smoke” followed by glazing over the whole bit about the Supreme Court trying to function wholly unmoored from ethical oversight.

In other words, the whole article amounted to a lot of smoke itself.

Demand Ethics from Congress, Too, Not Only the Supreme Court [Bloomberg]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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