Supreme Court Justice Clarence Thomas likes to describe billionaire Harlan Crow as his friend, but recent revelations from ProPublica paint a much more sinister picture of a patron-client relationship. Last week, ProPublica documented that for more than two decades Thomas and his wife, Ginni Thomas, have taken almost annual luxury vacations in the company of Crow. These vacations went undisclosed until ProPublica’s investigation. In 2009, the billionaire also gave $500,000 to Liberty Central, a right-wing activist group headed by Ginni Thomas. Answering criticism of his secretive ties to a plutocrat who often gives money to political causes that have business before the courts, Thomas responded that Harlan and his wife, Kathy Crow, are ”among our dearest friends. As friends do, we have joined them on a number of family trips.”
On Thursday, ProPublica posted a follow-up exposé reporting an even more damaging financial connection between the judge and the mogul. In 2014, Crow bought the Savannah, Ga., home owned in part by Clarence Thomas, as well as his mother and other members of the family. Crow not only purchased the house but also paid tens of thousands of dollars toward renovations. Thomas’s mother, Leola Williams, continues to live in the house, where the property tax is paid for by Crow. Previously, the tax had been paid by Clarence and Ginni Thomas.
This is no ordinary real estate deal. The real estate magnate also purchased other property in the neighborhood, dilapidated houses and lots that he lavished with funds to upgrade (so Williams now lives in a much nicer neighborhood). Crow claims that he did this with the intent to eventually turn the house into a museum honoring Thomas. Be that as it may, he has undoubtedly bestowed an enormous financial and personal boon on the Thomas family. Conflict-of-interest legislation passed after Watergate requires Thomas to disclose his financial relationship with Crow. Thomas has never done so.
Connecticut Senator Chris Murphy called attention to a 2011 ThinkProgress article documenting that a Crow-affiliated group, the Center for Community Interest, filed eight briefs to the Supreme Court. In all eight cases, Thomas took the side advocated by the Crow-backed group.
Supreme Court Justice Sonia Sotomayer complained that the “stench” of politicization hung over the court’s overturning of Roe v. Wade. Surely the stench of corruption as well as politicization hangs over Thomas’s financial and personal intimacy with Crow. But this is not the only scandal engulfing the federal judiciary. Republican presidents from Reagan to Donald Trump have successfully stacked the courts with reactionary judges who are increasingly contemptuous of the rule of law.
Last Friday, Texas District Judge Matthew Kacsmaryk issued an astonishing ruling overturning FDA approval for mifepristone, the most common medication used for abortion in the United States. In Slate, legal reporter Mark Joseph Stern described Kacsmaryk’s decision as “unprecedented,” because it “marks the first time in history that a court has claimed the authority to single-handedly pull a drug from the market, a power that courts do not, in fact, have. Kacsmaryk’s ruling is indefensible from top to bottom and will go down in history as one of the judiciary’s most shocking and lawless moments.”
Very early on Thursday, the US Court of Appeals for the Fifth Circuit issued a partial stay of Kacsmaryk’s decision, which would allow mifepristone to continue to be sold—but only under highly restricted conditions. Ruth Marcus of The Washington Post described the federal appeals court decision as “a defeat for the rule of law, for scientific expertise and for reproductive health,” because “mifepristone will be available only through seven weeks of pregnancy, not the 10 weeks that the Food and Drug Administration has said is safe and effective. Women won’t be able to obtain the medication through the mail, and will be able to get it only after in-person office visits—not one but three. Only physicians will be allowed to dispense it.”
If the courts are corrupt and lawless, the normal redress under a constitutional system of checks and balances is for pushback from Congress, particularly the Senate Judiciary Committee. The Senate could investigate Thomas; it could limit judicial review of medical matters such as the safety or efficacy of mifepristone; it could expand the courts; and it could confirm more liberal judges to dilute the power of the reactionaries in the courts.
Unfortunately, there’s little reason to think that the Senate Judiciary Committee under the chair of Dick Durbin is up to the job. Addicted to norms and bipartisan comity, Durbin and the other Senate Democrats are more likely to hand-wring their way through the current crisis than to effectively limit the power of corrupt and lawless judges.
Reacting to the ProPublica report, Durbin commented, “Astonishing. As @JudiciaryDems wrote, the Chief Justice [John Roberts] must investigate how such conduct could take place at the court under his watch. And if the court does not fix these clear abuses, Congress must.” In an e-mail to me, Jeff Hauser of the Revolving Door Project wrote that Durbin’s call for John Roberts to investigate the court has the air of a “fairy tale.” Hauser insists that rather than waiting on Roberts, who has shown no signs of wanting to hold his fellow justices accountable, “Durbin can lead a conversation that is painfully overdue about how the courts have gone off track. Detailed hearings are substantively necessary and politically advantageous. Only a weak-kneed and self-loathing political party would fail to put this Supreme Court generally, and this Supreme Court Justice in particular, under the microscope.”
Hearings to investigate Thomas or consider other forms of judicial reform would require a functioning Senate Judiciary Committee. And, sadly, there’s little evidence that Durbin is overseeing anything that has the competence required.
California Senator Dianne Feinstein, currently suffering from shingles, has been on medical leave since February. Her inability to attend the Senate is impeding Democrats’ ability to confirm judges already nominated by Joe Biden. Even prior to her current medical difficulty, it was well-understood in Washington that Feinstein, who is 89 years old, has diminished mental capacity. Painful accounts of Feinstein’s deteriorating cognitive powers has been published in The New York Times, The New Yorker, and New York. Arguably, Feinstein’s mental condition also contributed to her weak performance in opposing Donald Trump’s nomination of Brett Kavanaugh and Amy Coney Barrett to the Supreme Court. What was true of those hearings is even more true now. Politico reports that “multiple Democrats close to her, as well as top-ranking congressional aides, are growing increasingly concerned that she may never come back to Washington at all.”
Democrats are currently in a protracted internal battle over the Feinstein situation. Former House speaker Nancy Pelosi and others have suggested that questions about Feinstein’s health are driven by sexism. Conversely, Representative Ro Khanna argued, “We need to put the country ahead of personal loyalty.” On Tuesday, Katie Porter, who has announced a bid to replace Feinstein in the Senate, told MSNBC, “I think the solution on the judges portion is to have her removed from her committee if she is unable to do her service.” Feinstein herself has asked to be temporarily replaced on the Judiciary Committee, a solution that might not be possible because it requires Republican support.
There may be no easy solution to the Feinstein situation.
But stepping outside the moment, we need to consider the root causes of all these problems: Clarence Thomas’s alleged corruption, the lawless decisions of reactionary judges like Kacsmaryk, the inability or unwillingness of senators like Feinstein and Durbin to do their job. The common root of all these problems is the paralysis of the Democratic leadership class. Senate Democrats are deeply vested in preserving norms and traditions—which makes them loath to challenge judges like Thomas and Kacsmaryk. Democratic leaders are all too comfortable in their sinecures of seniority and comity, and it is this comfort that underpins the power of a Feinstein and a Durbin. Wedded to the status quo, Senate Democrats are profoundly feckless. This fecklessness is what enables both Thomas’s corruption and Kacsmaryk’s lawlessness.