During the past week, the news has been filled with reports related to trips and gifts taken by Supreme Court Justice Clarence Thomas. According to the Associated Press, for more than two decades he has “accepted luxury trips nearly every year from Republican megadonor Harlan Crow without reporting them on financial disclosure forms.” The AP attributed the story to ProPublica, which it calls “a nonprofit investigative journalism organization.” The story “catalogs various trips Thomas has taken aboard Crow’s yacht and private jet as well as to Crow’s private resort in the Adirondacks. A 2019 trip to Indonesia the story detailed could have cost more than $500,000 had Thomas chartered the plane and yacht himself, ProPublica reported.”
The AP story continues:
“Supreme Court justices, like other federal judges, are required to file an annual financial disclosure report which asks them to list gifts they have received. It was not clear why Thomas omitted the trips, but under a judiciary policy guide consulted by The Associated Press, food, lodging or entertainment received as “personal hospitality of any individual” does not need to be reported if it is at the personal residence of that individual or their family. That said, the exception to reporting is not supposed to cover “transportation that substitutes for commercial transportation” and properties owned by an entity (Associated Press, April 6, 2023).
This issue reappeared on April 13 when ProPublica reported a real estate transaction involving Thomas and Crow:
“In 2014, one of Texas billionaire Harlan Crow’s companies purchased a string of properties on a quiet residential street in Savannah, Georgia. It wasn’t a marquee acquisition for the real estate magnate, just an old single-story home and two vacant lots down the road. What made it noteworthy were the people on the other side of the deal: Supreme Court Justice Clarence Thomas and his relatives.
The transaction marks the first known instance of money flowing from the Republican megadonor to the Supreme Court justice. The Crow company bought the properties for $133,363 from three co-owners — Thomas, his mother and the family of Thomas’ late brother, according to a state tax document and a deed dated Oct. 15, 2014, filed at the Chatham County courthouse.
The purchase put Crow in an unusual position: He now owned the house where the justice’s elderly mother was living. Soon after the sale was completed, contractors began work on tens of thousands of dollars of improvements on the two-bedroom, one-bathroom home, which looks out onto a patch of orange trees. The renovations included a carport, a repaired roof and a new fence and gates, according to city permit records and blueprints.
A federal disclosure law passed after Watergate requires justices and other officials to disclose the details of most real estate sales over $1,000. Thomas never disclosed his sale of the Savannah properties. That appears to be a violation of the law, four ethics law experts told ProPublica.
The disclosure form Thomas filed for that year also had a space to report the identity of the buyer in any private transaction, such as a real estate deal. That space is blank.
“He needed to report his interest in the sale,” said Virginia Canter, a former government ethics lawyer now at the watchdog group CREW. “Given the role Crow has played in subsidizing the lifestyle of Thomas and his wife, you have to wonder if this was an effort to put cash in their pockets” (ProPublica, April 13, 2023).
The first question raised by these stories concerns the reliability of the reporting in these two nonprofit news organizations. In recent years, attention has been paid to the blurred line between factual news reports and the opinion section or segments of both print and electronic media. The Associated Press and ProPublica offer factual news reports, but the rhetoric becomes blatantly partisan if we open the opinion section of most media. Consider this response to the ProPublica report that appeared the next day in the Editorial Section of The Wall Street Journal:
The liberal press—pardon the redundancy—has climbed onto its ethical high horse and is demanding “reform” at the Court.
This ethics talk is really about setting up an apparatus that politicians can then use against the Justices if there is any transgression, however minor or inadvertent. The claims of corruption are intended to smear the conservative Justices and tarnish the Court to tee up case recusals, impeachment or a Court-packing scheme if Democrats get enough Senate votes to break the filibuster.
It’s all ugly politics, but the left is furious it lost control of the Court, and it wants it back by whatever means possible (WSJ, The Editorial Board, April 7, 2023).
We often witness political partisanship when accusations are made either informally or in formal legal action. Former President Trump’s response to his recent indictment by a grand jury in Manhattan is a clear example. He says the indictment is simply a political “witch hunt” by his enemies, and he calls upon his “friends” to protect him from such unfair attacks. This kind of exchange, which diverts attention from seeking the facts and the truth, is a long-standing concern within the philosophical discipline called logic. Identifying and labeling such tactics as logical fallacies is common in secondary education and in undergraduate college courses. Such disputes and claims of fallacious reasoning pervaded Medieval philosophy in Europe when Latin was the dominant language. Thus, the fallacy used by the WSJ in that snide opinion piece has a Latin name: ad hominem. Instead of seeking the facts or the overall truth of the matter, a common tactic is to attack the person or the party making the claim.
Let’s look on the other side of the political spectrum where it is easy to find a contrasting opinion about Justice Thomas’s relationship with Harlan Crow. Here is an example from a recent piece on Substack by Robert Reich:
Clarence Thomas’s bizarre claim that he failed to disclose the lavish gifts he received from Republican megadonor Harlan Crow because he didn’t believe he had to brought me back to a day 30 years ago when Bill Gates asked me to lunch.
I was secretary of labor then. Gates was the CEO of Microsoft, and the richest person in America. Curious and flattered, I accepted his invitation.
I don’t recall much about the lunch except that it was at an expensive restaurant, and everything Gates said struck me as rather predictable.
When I returned to my office, the Labor Department’s chief lawyer stopped by to ask if I had enjoyed the lunch, and if I had paid for my portion. I was embarrassed to tell him that paying had never occurred to me. I was having lunch with Bill Gates, for crying out loud.
The chief lawyer patiently explained that federal law barred employees of the executive branch from accepting gifts whose value exceeded $50 — which would include my extravagant lunch with Bill Gates. “There are exceptions,” he said, “but my advice is that you send Gates a check for the value of your lunch.”
“Really?” I asked, incredulously. “I don’t even know how much it cost!”
He whipped out a piece of paper. “We phoned his office, and you owe him $120.”
“But…” I stammered.
“Oh, and be sure to make it a personal check,” he said. “I can have it delivered to his hotel this afternoon. For safety sake, add $15 to cover the cost of delivery.”
So I did what the Labor Department’s chief lawyer advised I do. I made out a check to Bill Gates for $135.00 (Robert Reich, Substack, April 13, 2023).
Philosophy, as I understand it and try to practice it, seeks a perspective that transcends partisan politics through a quest for what is universal. In this episode, I will try to avoid partisan debate and focus on a philosophical concept that is related to this recent set of news stories about Justice Thomas. That concept is justice. What topic could be more important to a member of the U. S. Supreme court than justice? Yet the Wall Street Journal editorial board seeks to downplay any such concern by saying that the “liberal press” has “climbed onto its ethical high horse.” What does that phrase mean in this context? Are ethics and morality irrelevant to journalism—the Fourth Estate? On the contrary, the question of Justice Thomas’s relationship with Harlan Crow and its ethical status is not only central to this story but to the overall topic of democracy that pervades this entire series. It is impossible to have a genuine democracy if the highest court of appeal for all citizens loses its credibility concerning justice itself.
The editorial from the WSJ defends Thomas by saying:
“The Court’s rules at the time all of this happened did not require that gifts of personal hospitality be disclosed. This includes the private plane trips. ProPublica fails to make clear to readers that the U.S. Judicial Conference recently changed its rules to require more disclosure. The new rules took effect last month (WSJ, The Editorial Board, April 7, 2023).
However, there is a difference between (1) a set of rules for an individual or a group and (2) ethical principles. The Mafia in Sicily has a set of strict rules, but the Cosa Nostra, its U.S. version, is not interested promoting justice for all. The real question is not about rules but about whether those rules are just and, ultimately, whether they are designed to seek justice. The WSJ editorial board does not seem to understand that difference: “The ProPublica writers suggest that Justice Thomas may have violated ethics rules, and they quote a couple of cherry-picked ethicists to express their dismay” (WSJ, The Editorial Board, April 7, 2023). Justice is a fundamental principle, not an arbitrary rule or set of rules designed to promote some personal, partisan, or criminal interest. It is a serious mistake to think that an “ethicist” can be summoned the way a lawyer is retained to promote such interests. In a democracy, which rests on autonomy, individuals and groups depend on a universal concept of justice to guide decisions about which actions to pursue and which laws to enact and support. Philosophers who have examined and supported that universal idea include contemporary thinkers such as John Rawls, Immanuel Kant in the 18th century, and Plato in ancient Athens. Over a period of 24 centuries, these philosophers and a host of others have offered rational analysis and justification of the idea of justice that is suitable for a genuine democracy. Rawls, who died in 2002, published his major book, A Theory of Justice, in 1971. In that influential work, Rawls explains and analyzes the idea of justice as fairness, a view that fits well with the kind of democracy envisioned by John Locke, Jean-Jacques Rousseau, and John Dewey. Fairness is violated when judges or presidents promote the interests of their friends rather than the common good. Rawls imagines a society in which all citizens hold equal basic rights and cooperate in an egalitarian economic system.
Supreme court justices seldom have much to say about the philosophical principles on which their opinions and decisions rest. We do hear a lot about “precedent (stare decisis),” but that kind of rationale does little to help us understand what is just or right about the decision itself. I have asked more than one federal judge about the appeal to precedent as support for a decision, but the most they could say is that it provides a kind of stability and predictability for a society. Consistency and stability are important, but they count only if the past decisions and laws are just and good. When Roe v. Wade, which was decided in 1973, was overturned in 2022, precedent was violated; so, some other justification must be found. On what rational basis can the justice of that reversal be explained? What in the history of philosophy can be cited to reconcile the disruption that decision has caused in rational terms, especially if we are seeking laws and practices that promote and preserve democracy? If, as I have said from the beginning of this series, autonomy and universality are essential criteria, it is hard to find cogent arguments to support that reversal after 50 years. Sometimes it is important to change laws and legal precedents that turn out to be unjust. For that reason, laws and practices concerning slavery were changed. The Constitution was amended to recognize a woman’s right to vote. It is easy to provide rational justification for correcting those mistakes.
Without sound rational argument, it is impossible to understand how anyone, especially federal judges serving in a democracy, try to justify their decisions. To what cogent meaning of justice could Justice Thomas appeal in failing to report extravagant gifts from his “friends,” especially when those gifts include something as tangible and well documented as real estate? Philosophers do disagree about the meaning of justice and its proper implementation in the actual world. In Plato’s dialogue Gorgias, the character Callicles presents and defends a version of what Friedrich Nietzsche, in the 19th century, called “the will to power.” That justification was often cited to support the practices of the Third Reich in Hitler’s Germany. When Socrates rejects that idea as a moral principle, Callicles seeks to replace it with an early form of utilitarian philosophy, which was developed by Jeremy Bentham, James Mill, and John Stuart Mill in the 19th century. Callicles equates justice with acquiring the maximum amount of pleasure and the least pain for individuals and for whole communities. Socrates brings an end to that attempt by pointing out that not all pleasures are good and showing that merely getting more of something often conflicts with what is just, fair, and wise. Any undergraduate college student who has studied Plato’s Republic can easily refute Polemarchus’s claim that “justice is helping friends and harming enemies,” or Thrasymachus’s insistence that “justice is the interest of the stronger.”
When a supreme court justice and a former president seem to be using such naïve visions of justice to make the most serious decisions for the United States and the rest of the world, democracy itself is on the line.