Clarence Thomas is Winning His War on Transparency
Supreme Court Justice Clarence Thomas has spent two decades taking some very fancy vacations with the immensely rich conservative donor Harlan Crow, who also allows Thomas’s mother to live rent-free on property he bought for a very generous price from Thomas almost a decade ago. Those revelations arrived in reports from ProPublica, Slate, and CNN over the past two weeks. Other outlets had previously reported that Crow had given a great deal of cash to the political-advocacy organization run by Thomas’s wife, Virginia, who was last seen urging Republicans to overthrow the 2020 presidential election to keep Donald Trump in power.
There is no proof Thomas ever acted at Crow’s direction. The justice has publicly stated that the failure to comply with the law by disclosing his financial entanglements with Crow was an unintended error, but if so, it was a mistake that is remarkably consistent with his ideological position that people who use their money and influence to steer the American political system ought to be able to do so in complete secrecy. This error was curiously convenient, in that it just happened to conceal a deep financial relationship with a very politically active right-wing donor who has bankrolled organizations that have a winning record before the Court. Perhaps more significant, Thomas’s idiosyncratic views about speech, democracy, and accountability have become more popular among the justices themselves as Republican appointments have moved the Court to the right. As Dahlia Lithwick and Mark Joseph Stern write at Slate, Thomas has argued over decades that laws compelling such disclosure are unconstitutional.
[From the September 2019 issue: Deconstructing Clarence Thomas]
In the 2010 Citizens United decision striking down limits on corporate electioneering, Thomas was the only justice to argue that the Court “should invalidate mandatory disclosure and reporting requirements,” because donors to the California anti-marriage-equality referendum Proposition 8 had been subject to threats, harassment, and verbal criticism. The first two are potentially illegal acts, and the last is a form of constitutionally protected speech. The conflation foreshadows the current right-wing discourse on free speech, the core of which is that conservatives have a right to prevent others from disassociating from them because they find their views noxious.
The 2010 case Doe v. Reed laid bare a key distinction between Thomas and the late Justice Antonin Scalia, in whose shadow Thomas was often unfairly accused of laboring. The columnist Helen Thomas once described him as being in Scalia’s “hip pocket,” a claim that woefully misunderstood their ideological relationship. In fact, Thomas frequently staked out much more extreme positions. In Doe v. Reed, Thomas argued that citizens participating in a ballot referendum had a right to conceal their identities, because “a long, unbroken line of this Court’s precedents holds that privacy of association is protected under the First Amendment.” Scalia, by contrast, asserted the importance of transparency in a democracy with a passage that struck Court watchers at the time as notable.
There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
Once, when asked to compare his approach with Thomas’s, Scalia reportedly quipped, “I’m an originalist, but I’m not a nut.”
The Court would get nuttier in Scalia’s absence—though it’s worth noting that he was prone to altering his jurisprudence to match trends in conservative politics. In the 2021 case Americans for Prosperity Foundation v. Bonta, the Supreme Court held that California’s donor-disclosure laws were unconstitutional, relying in part on a 1958 case, NAACP v. Alabama ex rel. Patterson, which held that the civil-rights organization did not have to disclose its donors to a white-supremacist state government with a history of engaging in terrorism against its Black residents. A post on the website for the Federalist Society, the influential right-wing legal organization, hailed the recent decision as a victory against “cancel culture.”
[Read: The Clarence Thomas effect]
Put simply, the conservative position had moved from heeding Scalia’s reminder in Doe v. Reed of the importance of transparency and civic bravery in a democracy, to embracing Thomas’s 2010 Citizens United opinion, which conflates threats, violence, and harassment with people thinking you’re a jerk.
The financial relationship between Crow and Thomas raises obvious questions about the influence the Texas-based donor has over the justice; Crow-funded organizations have done remarkably well before the Roberts Court. Conservative outlets have asserted that the reporting by ProPublica, Slate, and CNN is a “smear,” but none of those outlets forced Thomas to not disclose his financial entanglements with a man spending fortunes to advance his political interests. If Thomas had made the disclosures, he still would have come under criticism, but public suspicion is much greater because he did not. And although that lack of disclosure is damaging in and of itself, it does not confirm that Thomas has ever used his power on Crow’s behalf.
After the Thomas stories broke, a number of conservative commentators piped up to defend Crow, testifying to his moral fortitude and personal integrity. But their rebuttals did more to illustrate the problems with Crow’s patronage than to defend it. Many of those who spoke up have personal or financial relationships with Crow. One such defender was Senator Mike Lee of Utah, a former clerk to Justice Samuel Alito—who echoes Scalia’s resentments, preoccupations, and contemptuous tone far more than Thomas does, but without the late justice’s relative erudition—and a recipient of political donations from Crow. Lee asserted that the reporting on the financial relationship between the two men was defamatory.
“Make no mistake: this is defamation,” Lee wrote on Twitter. “The media gets away with it only because Justice Thomas is a public figure, and under a Supreme Court ruling from 1964, public figures have essentially no recourse when they’re defamed by the media.”
Lee was referring to Thomas’s crusade against the landmark case Times v. Sullivan, which established the standard of “actual malice” for defamation, under which public figures need to prove that a speaker knew something was false or had a reckless disregard for the truth when they made the statement. The precedent enables Americans to have a robust public discourse without being sued into silence by wealthy and powerful people. Even so, as Fox News and the right-wing commentator Alex Jones recently discovered, it is not an ironclad protection for liars with large platforms.
Indeed, Lee’s statement about the reporting on Thomas, implying that it’s false even though the justice himself has acknowledged some of his own errors, comes closer to defamation than anything those outlets have published. Fortunately for Lee, free-speech precedents like the one he wants to repeal protect his right to engage in baseless hyperbole on subjects of public interest when he feels like farming clout on social media.
Put together, Thomas’s hostility to disclosure laws and to free-speech precedents paints a vivid picture of American democracy as he believes it should exist: a system small enough to be bought by a tight circle of anonymous oligarchs, and big enough to silence anyone who might criticize them. Only then, when the rich men who own the place and the rich men who run the place can take their Indonesian cruises on superyachts together in private, will speech and association be truly free.