Today, Explained - The Supreme Court’s corruption crisis

Episode Date: May 2, 2023

In a hearing today, the Senate Judiciary Committee took on the Supreme Court’s lack of ethics standards. ProPublica’s Joshua Kaplan explains how his reporting on Justice Clarence Thomas’s history of accepting gifts from a conservative megadonor led to increased scrutiny of the court. This episode was produced by Haleema Shah and Siona Peterous, edited by Amina Al-Sadi, fact-checked by Laura Bullard and Serena Solin, engineered by Paul Robert Mounsey, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained   Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

For almost one month now, stories have been trickling out about the personal finances of United States Supreme Court justices. Private jets, real estate deals, conflicts of interest. The kinds of things you'd want to disclose to your boss if you were an unelected government employee who wielded godlike powers. Except the justices weren't doing a ton of disclosing. And it's been raising lots of eyebrows. And today, all that eyebrow raising culminated in a Senate judiciary hearing. Highest court in the land should not have the lowest ethical standards. We're holding our own hearing at Today Explained. We're going to talk to a guy who helped break the original story about Clarence Thomas and his billionaire bestie.

And we're going to ask why the Supreme Court is so bad at accountability and whether its current corruption crisis might change anything. Oh, yeah. Oh, yeah. Oh, yeah. Oh, yeah. Oh, yeah. Oh, yeah.

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Gambling problem? Call 1-866-531-2600 or visit connectsontario.ca. Ciao. Ciao. Ciao. Sto ascoltando. Oggi spiegato. Today explain.

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Explain. Explain. Joshua Kaplan was one of three reporters who broke a story at ProPublica about Justice Clarence Thomas and his big billionaire bro, Harlan Crow. We asked him why he was looking at Clarence's finances in the first place. Well, we didn't start by looking just at Clarence Thomas had flown on this billionaire, Harlan Crowe's private plane from D.C. to New Haven and back for a visit that lasted only three hours. It looked like he was flying on this jet for a lunchtime appointment. We weren't sure what he was there for. But, you know, we talked to other private jet charter companies and they told us that, you know, renting a jet for a trip like that would cost about $70,000.

Wow. How much money does Clarence Thomas make a year as a Supreme Court justice? He makes $285,000 a year. So goes without saying, he probably didn't drop $70,000 on a private jet out to Connecticut for a few hours. So let's ask, who is Harlan Crowe? So Harlan Crowe is a real estate billionaire who lives in Dallas. He oversees his family real estate empire. It's called Crowe Holdings. Part of the whole goal was to succeed as a group of people working together. The idea of if you earn a dollar, you share that dollar. And it doesn't belong to me, it belongs to us.

And he is also a very influential figure and has been for a long time in pro-business, conservative politics. He's a major Republican donor, has given many millions of dollars to campaigns and political causes. And he's also given millions to ideological efforts to move the law and the judiciary that says... He also sits on the boards of major conservative think tanks that publish scholarship advancing very specific conservative legal theories and whose scholars occasionally file amicus briefs with the Supreme Court. And once you found out about Clarence Thomas' very expensive lunch to Connecticut, what else did you find out about his financial relationship with Harlan Crowe? Yeah, so, I mean, first there were the trips. And, you know, to name one recent example, in 2019, Clarence Thomas flew to Indonesia on Harlan Crowe's private jet and then spent nine days island hopping on Crowe's super yacht, which is staffed with private chefs, a host of stewardesses. And we were told that if he was to charter that plane and that yacht himself, you know, the trip could have easily cost $500,000.

Wow. Then we had our second story. We also found a direct financial transaction, the first known direct financial transaction between these two men, which was an undisclosed real estate deal. So Harlan Crow spent roughly $133,000 to buy three properties from Clarence Thomas and his relatives, one of which was the house, this old single-story house where Thomas's mom was living, and the others were two vacant lots down the street. So that was, you know, the only instance we're aware of where

there's money actually directly flowing from Crow into Thomas's pocket. Just to be clear here, you're saying that Harlan Crow bought Clarence Thomas's mother a house? He bought Clarence Thomas's mother's house where she was living from Clarence Thomas. And then she kept living there. CNN has reported that she's not paying rent. Another thing we found is that she's still living there today. It's about 10 years later. And shortly after Crow bought the house, this local award-winning architecture firm began work on tens of thousands

of dollars of improvements on the property. Why is this happening? If she already had the house, why did this guy buy her house and then start renovating it for her? Do we have any idea? Well, Crow told us that he bought it because he intends to one day eventually make it into a museum. Huh. Like the Museum of Clarence Thomas? The Museum of Clarence Thomas. This is a house where he spent part of his childhood. It is, you know, an important property in his life. And Crow told us that he approached Thomas and his family about making this purchase.

Crow has never directly addressed the question of why he also bought two vacant lots from Clarence Thomas that are down the same street. And so the exact details of the motivation there are a bit less clear. How unusual is all of this? The trips to Indonesia, the private jet to Connecticut, the buying of his mother's house and two other lots that he owns. There is no known precedent for this in the modern history of the U.S. Supreme Court in terms of the scale, the frequency, the lavishness. And we talked to experts and a number of current and former federal judges who told us Thomas has broken longstanding norms for judges' conduct.

I think it's worth noting that judges are supposed to conduct themselves with a level of probity that exceeds even that we expect from our other public officials. I mean, they have lifetime tenure because they're expected to remain independent and to conduct themselves in a way that promotes confidence in the judiciary and, you know, stay insulated from the hurly-burly of Washington politics. Okay, we're talking about norms, we're talking about standards. Is any of this actually illegal? Experts told us that Thomas appears to have broken the law, although maybe not in the way that you'd expect. So there are very few rules restricting what gifts Supreme Court justices can accept. And that's a stark contrast to the other branches of government. There are a lot of rules for Congress, for instance, when it comes to accepting gifts. But with the Supreme Court,

it's pretty much anything goes. And so there's not really any question that by accepting a, you know, extraordinarily expensive trip to Indonesia, that was okay in terms of the law. Where he appears to have broken the law, experts told us, is that he didn't disclose any of this. So there's a landmark government ethics law that was passed after Watergate that requires Supreme Court justices and many other high-level government officials to disclose most gifts to the public, to disclose most real estate transactions over a thousand dollars. And experts told us that by not disclosing things like flights, by not disclosing, you know, the money he received from Crow, Thomas appears to have

clearly violated the law. What's Justice Clarence Thomas saying about all this? You know, we went to him for our first story about travel. He didn't respond to us, the detailed questions we sent him. But the day after it published and it was causing, you know, a fairly heated response in Washington, he released a statement where he said, Harlan and Kathy Crow are among our dearest friends and we have been friends for over 25 years. As friends do, we have joined them on a number of family trips during the more than a quarter century we have known them. Early in my tenure at the court, I sought guidance from my colleagues and others in the judiciary and was advised that this sort of personal hospitality

from close personal friends who did not have business before the court was not reportable. After we received that statement, we went to seven ethics law experts, including former ethics lawyers for the White House and Congress who'd served in both administrations of both parties. And they all told us Thomas clearly had to disclose things like private jet flights and that if he's arguing otherwise, he's simply incorrect. Now, the real estate transaction, Thomas hasn't said anything. CNN had a report citing an anonymous source close to Thomas that he intends to amend his disclosure and essentially that he misunderstood the rules.

We've gone to Thomas saying, like, is this true? He hasn't responded to that either. And so far, you know, that amended report hasn't been made public. Your reporting on Clarence Thomas seems to have led to other reporting from other outlets about other justices. What else have we found out in the intervening weeks? There have been a number of reports. Politico reported that Neil Gorsuch sold a property he had a stake in to a lawyer at a major law firm, and that he sold it,

I think it was nine days after he became a justice, which he disclosed the sale. Unlike Thomas, he did not disclose who he was selling it to, which is, you know, a bit of a murkier legal question at that point, although there was a box, you know, on the form for him to list that. There was also a report last week from Business Insider about John Roberts' wife and her job, which is essentially a headhunter for corporations and law firms looking for top employees and the amount of money she's made off of this. How much money has she made off of it?

I think it was about $10 million over the years. $10 million over the years. $10 million. Yeah. I mean, and, you know, she was a successful lawyer before Roberts went on the court. You know, this is her job. She is being paid for her job, although it is an eye-popping amount of money. And some of these firms, you know, have had business before the court. And so I think there's a long history of questions being raised about family and spouses of public officials and whether they're trading on, you know, their spouse's public position. I think the root issue here is that the Supreme Court has very, very little transparency and very, very little oversight compared to virtually every other part of the federal government. And for a long time, Supreme Court justices have been left almost entirely to police themselves.

And we're seeing that maybe they're not that good at it. Josh Kaplan, ProPublica. Find his reporting at ProPublica.org. In a minute, what it would take to get someone else to police the various financial schemes of the Supreme Court justices. Support for Today Explained comes from Ramp. Ramp is the corporate card and spend management software designed to help you save time and put money back in your pocket. Ramp says they give finance teams unprecedented control and insight into company spend. With Ramp, you're able to issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the Thank you. issued by Sutton Bank, member FDIC, terms and conditions apply. Or how about more ways to customize your casino page with our new favorite and recently played games tabs. And to top it all off, quick and secure withdrawals. Get more everything with FanDuel Sportsbook and Casino.

Gambling problem? Call 1-866-531-2600. Visit connectsontario.ca. Today Explained is back. We are here with Ian Millhiser, Senior Cor senior correspondent at Vox, who covers the Supreme Court. Ian, it seems like the Supreme Court justices really like to fuck around. Are they ever going to find out? The bad news is probably no. The reason why they get away with this over and over and over again is that the only real way to remove a justice of the Supreme Court is via impeachment.

And it's just very, very unlikely that the super majority of senators that would be necessary to remove a justice is going to come together no matter what these guys do. And to let people into like a little today, explain behind the scenes here. About a month ago, when ProPublica first reported this story about Clarence Thomas and his ties to Harlan Crowe, I reached out to you on Slack and said, Ian, are we going to do this show? Are you writing about it? And you were like, eh, I don't know. It's kind of like the same old story with the Supreme Court. Tell me why you weren't more surprised by these revelations. Yeah, I mean, I'm jaded. There were a bunch of very similar Clarence Thomas-related

scandals that broke. It came out that he had accepted a, I believe it was a $15,000 bust of Abraham Lincoln from the American Enterprise Institute, which is a conservative. Yeah, I know. Like, this man just loves his art, I guess. That sounds like something you would find at Goodwill. Exactly. I mean, this conservative think tank decided they needed to give it as a gift to a sitting Supreme Court justice. And I will point out that AEI filed several briefs in front of the Supreme Court. It doesn't take an ethics scholar to figure out why this should not be happening.

But nothing ever gets done, even though we've known about this relationship that Thomas has with Harlan Crowe for a very long time. Have people tried to do anything about these ethical concerns at the Supreme Court before? Yes, but never with any success. You know, when the news broke in 2011 that Thomas was taking all of these gifts, there was some noise in Congress about maybe doing something about it. The chief justice, every year he releases an annual report, his annual report on the federal judiciary. And he devoted much of his report that year you're not imposing an ethics code on them. In fact, that 2011 report repeatedly suggested it would be unconstitutional for Congress to impose an ethics code on the Supreme Court. The argument is some sort of vague separation of powers that, you know, the Supreme Court is an entity created by the Constitution itself, and therefore Congress has very limited authority to regulate the Supreme Court. You know, Congress has a tremendous amount of control over the Supreme Court's docket. You know, it used to it has the power to decide almost to the level of which cases the court hears and which cases it doesn't hear. So I don't really buy this argument. But the problem is, it doesn't matter what I

think. What matters is whether there's five justices to strike down an ethics code. And at least in 2011, the court seemed to be hinting that, yeah, they would strike it down if they didn't like the ethics code. What about in 2023? I mean, you've got bad press for Justice John Roberts. You've got bad press for Neil Gorsuch. You got bad press for Clarence Thomas. Nobody likes bad press. Do you think there is a growing consensus amongst the nine justices that maybe we should submit ourselves to a higher ethical standard. I don't know if the justices have figured this out yet, but like it's in their interest to have an ethics code. And the reason it's in their interest is because in addition to this Clarence

and like the Clarence Thomas scandal is egregious. You know, for 25 years, he's been accepting massive gifts from this billionaire. I mean, this is as bad as the Abe Fortas scandal in the 1960s, which was a different corruption scandal that led to Justice Abe Fortas resigning from the court. In these circumstances, it seems clear to me that it is not my duty to remain on the court, but rather to resign in the hope that this will enable the court to proceed with the vital work free from extraneous stress. That was written by Supreme Court Justice Abe Fortas in his 1969 letter of resignation from the Supreme Court because he had subjected the court to not quite two weeks of controversy, about twenty thousand dollars that he had received from a foundation three years earlier in his first year on the Supreme Court.

So, like, if you look at what Gorsuch is accused of, for example, he had a property that I think he has a one third ownership stake in out in Colorado that he was trying to sell. He'd been trying to sell it for, I think, like two years. And then nine days after he was confirmed to the Supreme Court, someone bought it. And the person who bought it was the chief executive of a major law firm that practices in front of the Supreme Court. And so if the Supreme Court had an ethics code, what it could do is it could have an outside body whose job is to look at these kinds of transactions. It could ask questions like, you know, was the property bought at fair market value? Was this an arm's length transaction? Did Gorsuch know who the buyer was? You know, did the buyer know that Gorsuch was one of the sellers? Like there's all sorts of questions that if the Supreme Court had its own ethics authority over

its own ethics board, it could submit these questions to that authority. And the authority might come back and say, yeah, like there's smoke here, but there's no fire. Like this transaction turns out to be fine. So that some of these things that don't rise to the really egregious level that the Thomas scandal does could be evaluated on their merits. And it may turn out that, you know, the justices do not deserve to be accused in some cases of what they're being accused of. So you're saying that nothing's going to happen unless the justices decide to sort of self police, which is rare, right?

You seldom see a group of powerful people surrender power. Why is it that the writers of the Constitution didn't bake something like this into the document? Was it because they didn't see these kinds of ethical quantities coming up at the Supreme Court? There's just new issues that come up. One reason why John Roberts is in a bit of hot water right now is because his wife, Jane Roberts, is a legal recruiter and she helps recruit lawyers at law firms that practice in front of the Supreme Court. That's not an issue that would have come up at the founding because the founders were pretty sexist. And, you know, the idea that you would have someone on the

Supreme Court who has a spouse who is also themselves a very high-powered professional with a very high-powered career, that just wasn't something that existed in the 1790. As these new issues come up, you need to come up with rules to navigate them. But the problem is that the Supreme Court hasn't done that work. And now there's this hearing on Capitol Hill today to talk about this. But there's also a piece of legislation from Senators Angus King and Lisa Murkowski. This is not a radical idea. Every judge in the country, except for these nine, have to follow a code of conduct. What are they trying to do? So it's a pretty vague piece of legislation, to be honest. You know, the first thing that it does is it just says the Supreme Court has to

come up with its own ethics code, I think within a year. The other thing that does is requires the Supreme Court to appoint some individual who will be their ethics monitor and that will be responsible for these questions of, you know, if a justice sells some property and it turns out they sold the property to a lawyer, let's have a third party look at that transaction and make sure that it's above board. And it doesn't mean that a justice is never allowed to sell their land. But what it does mean is that we need to have someone, you know, making sure that nothing was done in a way that creates a conflict of interest. Is there any chance that this could become law? Unlikely. I mean, Republicans control the House, and I think Republicans are reluctant to embarrass

someone like Clarence Thomas. Well, it's not going to work. This assault on Justice Thomas is well beyond ethics. It is about trying to make it hard for us to get any kind of code in place. Any kind of reform that would happen, I think, would have to come, you know, at the soonest after the next election and then only if Democrats have a blowout election. But I think that at least within the Democratic Party, there's a real sense that the court has gone off the rails, both because of its substantive decisions and because of fears of corruption. And, you know, if I were a justice, I would be concerned that Congress is going to start making my life more difficult unless the justices start showing that at the very least, they aren't going to keep accepting, you know, trips on super yachts from billionaires. Ian Millhiser, Vox.com. Our show today was produced by Halima Shah and Siona Petros.

They had help from Amina Alsadi, Laura Bullard, Serena Solon, and Paul Robert Mounsey. I'm Sean Ramos-Firm, and this is Today Explained..