[ The last time such serious allegations were made against a
sitting justice, Congress responded firmly, in bipartisan fashion.
Justice Abe Fortas’s 1969 departure from the court is a blueprint
for how lawmakers could respond and how far we have fallen]
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54 YEARS AGO, A SUPREME COURT JUSTICE WAS FORCED TO QUIT FOR BEHAVIOR
ARGUABLY LESS EGREGIOUS THAN THOMAS’S  
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Adam Cohen
April 11, 2023
New York Times
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_ The last time such serious allegations were made against a sitting
justice, Congress responded firmly, in bipartisan fashion. Justice Abe
Fortas’s 1969 departure from the court is a blueprint for how
lawmakers could respond and how far we have fallen _

Justice Clarence Thomas and his wife, Ginni, in 2021., Credit...Drew
Angerer // New York Times

 

There are two distressing aspects to the scandal of Justice Clarence
Thomas’s years of accepting luxurious vacations and private jet
trips from a billionaire, as revealed last week in a
damning investigation by ProPublica
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The first is that these gifts came from a man who seems to have strong
feelings about issues that come before the Supreme Court. The second
is the lack of bipartisan outrage at malfeasance that corrodes the
standing of the nation’s highest court.

Suggesting that Democrats and Republicans agree on anything involving
the Supreme Court these days sounds like the ramblings of a madman.
But it is worth recalling that the last time such serious allegations
were made against a sitting justice, Congress did respond firmly and
in bipartisan fashion. Justice Abe Fortas’s departure from the court
in 1969 is both a blueprint for how lawmakers could respond today and
a benchmark of how far we have fallen.

Fortas, a Democratic appointee, got caught up in a scandal that
involved much smaller dollar amounts than the lavish trips Justice
Thomas took, even factoring in inflation. Fortas accepted $20,000 to
consult for a foundation working on civil rights and religious
freedom. Justices consulting for nonprofits was once not so
unusual: William O. Douglas
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a paid position with the Albert Parvin Foundation, and Warren Burger
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one with the Mayo Foundation.

Unfortunately for Fortas, the businessman who started the foundation
that had retained him, Louis Wolfson, was investigated by the Justice
Department for financial improprieties and eventually convicted of
securities violations. In 1966, Fortas quit the foundation and
returned all the money he had accepted.

There were other clouds around Fortas. His contract with the
foundation was originally for $20,000 in annual payments
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consulting work for the rest of his life, and there was an earlier
controversy over a course he was paid $15,000 to teach at American
University while on the court. He also had an unfortunate habit of
continuing to offer advice to President Lyndon Johnson, whom he had
long advised, even after joining the court. But it was his involvement
with Wolfson that forced him off the court.

In 1969, Life_ _magazine reported on Fortas’s long-extinguished
ties to Wolfson’s foundation and on the money he had returned, and a
scandal ensued. We now know the Nixon administration was helping Life
with its investigation, including with some improper leaks, in an
attempt to drive Fortas off the court.
 

Abe Fortas with his Supreme Court clerks in 1967. (Photo:  George
Tames/The New York Times)
When Life’s revelations appeared, Republicans in Congress demanded
that Fortas resign. That was not surprising — the liberal Fortas was
appointed by Johnson. What was remarkable by today’s standards is
that Democrats demanded his ouster, too. Walter Mondale of Minnesota
was the first Democratic senator to do so, and Senator Joseph Tydings
of Maryland, a liberal Democrat who had been one of Fortas’s biggest
supporters, soon followed. It packed a real punch when The New York
Times_ _reported
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the front page, “Tydings Declares Fortas Must Resign Immediately.”

These Democrats called for Fortas to step down, even though President
Richard Nixon, a Republican, would appoint his successor, which would
help to flip the court from a liberal majority to a conservative one.
They made clear that they were more concerned with the court and the
country than with their ideology or their party. “The confidence of
our citizenry in the federal judiciary must be preserved,” Tydings
declared.

With his own party turning against him, Fortas was in danger of being
impeached by the Democratic-controlled House. Fortas insisted he had
done nothing wrong, but he stepped down, explaining
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his resignation letter to Chief Justice Earl Warren that “the
welfare and the maximum effectiveness of the court to perform its
critical role in our system of government are factors that are
paramount to all others.”

Justice Thomas’s conduct has been far more egregious in scale than
Fortas’s. ProPublica reported that a single nine-day “island
hopping” trip by Justice Thomas and his wife, which included a
162-foot superyacht, could have cost him over $500,000 if he had
chartered the private jet he flew on and the yacht himself. Justice
Thomas did not report the largess he received on his financial
disclosure forms, which appears to violate federal law, according to
ethics experts ProPublica spoke to. (Justice Thomas issued
a nonapology
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the “there is nothing to see here” variety.)

The defenses being made on Justice Thomas’s behalf hardly pass the
laugh test. It was just, as Justice Thomas put it, “personal
hospitality” among close friends? That would be a nice meal at a
friend’s home, not an invitation to travel the world like royalty on
a plutocrat’s dime. And about that friendship: ProPublica reports
that Justice Thomas’s rich benefactor, the real estate developer
Harlan Crow, befriended him after he became a justice. It is hard to
believe that if Justice Thomas started voting like Justice Sonia
Sotomayor, the friendship or the free island hopping would continue.

ProPublica reported that neither Mr. Crow nor his firm has had a case
before the court since Justice Thomas joined it. But Justice Thomas
and his conservative allies have been catering to the interests of the
ultrawealthy for years, from striking down campaign finance limits to
making it harder for workers to unionize. Mr. Crow also serves on the
board of the conservative American Enterprise Institute, whose website
makes clear that it takes a keen interest in cases before the court.

Justice Thomas’s windfall has “no known precedent in the modern
history of the U.S. Supreme Court,” according to ProPublica. It is
also part of a climate of growing ethical rot. He has been voting in
cases
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which his wife, the conservative activist Ginni Thomas, has ties to
the parties involved. Justice Antonin Scalia died in 2016 in a free
room at a luxury ranch
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by another very rich man.

The harm all of this does is incalculable. According to Gallup
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trust in the federal judiciary is at a record low. But the impact goes
beyond the court, damaging American democracy itself. Behavior like
Justice Thomas’s plays into the popular belief that across
government, the fix is in — that the rich and powerful are buying
off decision makers to get what they want.

Democrats have been screaming foul. Representative Bill Pascrell Jr.,
a New Jersey Democrat, called Justice Thomas “corrupt as hell
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demanded that he resign — one of several Democratic Congress members
urging resignation or impeachment. Democrats in Congress are also
pushing for a code of ethics
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the justices who, unlike lower court federal judges, are not covered
by one.

Republicans, however, have been deafeningly silent. Fox News
has filled the void
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locating an “expert” to declare that the story about Justice
Thomas is “politics, plain and simple.” Influential Republicans in
Congress are reported to be
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behind the scenes to block the push for a code of ethics.

If our body politic were as healthy today as it was in 1969, leaders
of both parties would be demanding Justice Thomas’s resignation, and
he would be as worried about being impeached by a Republican House as
Fortas was by a Democratic one. And we would hear Republicans in
Congress say, as Tydings once did, that what matters most of all is
not party or ideology but that “the confidence of our citizenry in
the federal judiciary must be preserved.”

_[ADAM COHEN, a former member of the New York Times editorial board,
is the author of “Supreme Inequality: The Supreme Court’s
Fifty-Year Battle for a More Unjust America
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* Supreme Court
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* Clarence Thomas
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* Abe Fortas
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* Harlan Crow
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* corruption
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* political corruption
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* bribery scandal
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* impeachment
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* ethics
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* judicial misconduct
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* Federal judges
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* GOP
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* MAGA
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* far right
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* neo-Nazis
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* Congress
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