A ProPublica investigation earlier this month laid bare Justice Clarence Thomas’ cozy relationship with Texas real estate magnate Harlan Crow. Over the years, Thomas has received valuable gifts from Crow, including a bible signed by Frederick Douglass and a sculpted bust of Abraham Lincoln, both valued in the tens of thousands of dollars. The report also highlighted frequent luxury trips taken on Crow’s yacht to far-flung destinations like Europe and New Zealand (in a documentary, Thomas once claimed he preferred “Wal-Mart parking lots” where he could be among normal people rather than going to Europe).
Crow also bought three properties from Thomas at apparently inflated prices, and Thomas’ mother still lives on one of them rent-free. None of these transactions and gifts were in the Supreme Court Justice’s financial disclosures. The conduct of Supreme Court Justices is bound to the Ethics in Government Act, and while Thomas almost certainly violated the EIGA by engaging in these transactions and hiding them from the public, there is, shockingly, no direct mechanism in that law for holding him accountable for it.
The whole scandal has justifiably provoked outrage and renewed calls for term limits on Justices, who are granted lifetime appointments, giving the public very little in the way of mechanisms for accountability. Justices can technically be impeached by Congress, but the process was only ever used once 200 years ago, and even on that single occasion the Senate stopped it short after the House voted to impeach.
In the hopes of reforming the Supreme Court, Democratic Senators have introduced a measure called the TERM Act, which would limit Justices to 18-year terms spaced two years apart. This would go a long way to eliminating the political games surrounding the timing of Supreme Court nominations that we’ve seen in recent years, like Merrick Garland’s nomination under President Obama, which was dead in the water due to Republicans in the Senate stalling the process until the next presidential election. The consistent timing of appointments would also ensure that the makeup of the court has a democratic feedback loop through a link with the President in office. We would not repeat another situation where Barack Obama, a two-term president, appointed two Justices, while Donald Trump, who served only one term, appointed three – every president would get to appoint two Justices, and every two-term president would get to appoint four.
While this measure is a major step forward and should be made into law to depoliticize the process of appointing Supreme Court Justices, the issues surrounding Justice Thomas remain to be addressed. Even if Thomas had been appointed under the rules of the TERM Act, his opportunities for corruption would still have been available due to the weak regulation surrounding the position. As of now, the only clause pertaining to the ethics of Supreme Court Justices is Article 3 Section 1 of the constitution, which dictates that they “shall hold their offices during good Behaviour.” In the nearly two and a half centuries since this language was adopted, no clarity in terms of legal precedent has emerged to narrow down what exactly “good Behaviour” means, making it essentially unenforceable. No additional statutes other than the as-of-yet toothless EIGA limit the conduct of Justices. Term limits are well and good, but 18 years with these (lack of) rules would still have left Clarence Thomas ample opportunity to peddle influence in the same way he already has, albeit with a very generous time limit.
Rules that speak directly to the issue of corruption, paired with meaningful enforcement mechanisms, are vital to ensure that the example of Clarence Thomas is not repeated. Term limits take us halfway there when in comes to reforming the Supreme Court, making the process of nomination fairer and putting a check on the political gamesmanship we’ve seen in recently. Ideally, Americans should be able to trust that Supreme Court Justices will carry out their duties with a sense of public interest. However, in the event that they do not live up to the ethical standards of the office, they deserve to rest easy that effective processes are in place to address their malfeasance.
