Podcast Summary: Jane Mayer on the Ethical Questions About Justice Clarence Thomas

Podcast: The Political Scene | The New Yorker
Host: David Remnick
Guest: Jane Mayer (Staff Writer, The New Yorker)
Date: April 24, 2023

Overview

In this episode, David Remnick is joined by journalist Jane Mayer to examine the mounting ethical concerns surrounding Supreme Court Justice Clarence Thomas. Spurred by recent ProPublica reporting, their discussion delves into Thomas’s history of undisclosed gifts, his wife’s political and financial entanglements, and the broader implications for trust in the Supreme Court. The episode explores weaknesses in the Court’s ethics enforcement, the broader pattern of both liberal and conservative justices accepting lavish hospitality, and the historical context and potential consequences of these revelations.

Key Discussion Points & Insights

1. Clarence Thomas’s Pattern of Ethical Violations

[02:59 - 05:00]

• Mayer is struck by the chronic nature of Thomas’s failure to disclose required financial and gift information.
• “This isn’t the first time this has been going on for years. It’s just maybe the most egregious examples of it.” — Jane Mayer [02:59]
• The 2004 Los Angeles Times story reveals Thomas accepted significant gifts from billionaire Harlan Crow, including a $19,000 Frederick Douglass Bible and a $15,000 Lincoln bust.
• After negative publicity then, Thomas largely stopped disclosing such gifts.

2. Lax Disclosure Rules and Exploiting Loopholes

[05:00 - 08:45]

• Supreme Court justices are required to disclose some gifts, real estate transactions, and spouse’s income—however, rules are looser compared to other branches.
• The “personal hospitality” exemption has been stretched to cover far more than intended.
  • “It’s been understood by over the years to mean, if you go to a friend’s house for dinner.” — Jane Mayer [06:06]
  • Lavish yachting vacations, though, are not reasonably covered by this exemption.
• Law prohibits judges from presiding over cases where family may have an interest or from accepting gifts from litigants.

3. Ginni Thomas’s Undisclosed Income

[06:45 - 07:45]

• In 2011, it emerged Thomas failed to disclose his wife’s large earnings from the Heritage Foundation, a major conservative legal influencer.
  • “He was supposed to have disclosed a spouse’s income, and he said, oh, he just had misunderstood the filing requirements...” — Jane Mayer [07:02]

4. Are Other Justices or Branches Guilty Too?

[08:45 - 10:39]

• Thomas’s behavior is notable for its scale and repetition, but other justices have also accepted paid trips.
  • Example: Ruth Bader Ginsburg’s trip to Israel paid by a billionaire (2018); Antonin Scalia’s repeated undisclosed hunting trips.
• Disclosure and enforcement for Supreme Court justices are much laxer than for Congress or the executive branch. There’s no Supreme Court inspector general or binding ethics adviser—it’s “the honor system.”
  • “Unlike the other branches...there’s no enforcement mechanism... It is just the justices are trusted to do the right thing.” — Jane Mayer [10:39]

5. Potential Consequences and Institutional Response

[11:19 - 14:40]

• Senator Sheldon Whitehouse and others call for investigation and referral of Thomas’s actions to the DOJ.
• U.S. Judicial Conference could recommend further action if it deems non-disclosure willful—could result in fines or theoretical criminal charges, but more likely just “widen the scandal.”
• Chief Justice John Roberts is under pressure to strengthen the Court’s ethics standards, but progress is slow.
• Court described as “nine separate law firms” with no centralized authority—limiting internal accountability.

6. Impeachment and Historical Precedent

[15:20 - 17:38]

• Only impeachment is constitutionally laid out as a remedy for Supreme Court misconduct.
• Fortas scandal (1969)—the only modern example of a justice forced out over financial improprieties.
• The recent real estate transaction: Harlan Crow purchased Thomas’s family home, with Thomas’s mother still living there rent-free, intensifies the ethical crisis.
  • “There’s really no way to argue that he shouldn’t have disclosed this. He should have disclosed this. He has said it was an oversight...” — Jane Mayer [17:40]

7. Implications for Public Trust and Democracy

[18:24 - 19:15]

• The ongoing scandal undermines trust in the Court and the rule of law.
  • “Oh, I think it’s very dangerous for democracy... People have to believe... that it’s justice that’s going to prevail, not just partisan politics.” — Jane Mayer [18:40]

Notable Quotes & Memorable Moments

• David Remnick: “This is the source of their integrity. Or at least that’s the theory. But the cascade of revelations coming out about Justice Clarence Thomas suggest something else, something far less high flown.” [01:17]
• Jane Mayer: “If you step back, basically, what are judges supposed to be? They’re supposed to be honest. They’re supposed to be independent. And I think it sort of stretches common sense to think that a judge could be independent when he takes that much money from one person.” [08:09]
• Jane Mayer: “Again, it’s the honor system at the Supreme Court. And if there is dishonor, there’s really only one remedy that’s ever been spelled out in the Constitution, and that’s impeachment.” [14:40]
• Jane Mayer: “Clarence Thomas has a history of being defiant in the face of criticism. In a way, it seems to embolden him...” [15:59]
• Jane Mayer: “He has said it was an oversight and that he didn’t understand. He just forgot—that’s what he said.” [17:40]
• Jane Mayer: “The glue that holds us together is the rule of law in this country.” [18:40]

Timestamps for Key Segments

• [02:59] – Chronic nature of Thomas's disclosure failures
• [06:45] – Ginni Thomas’s undisclosed Heritage Foundation income
• [08:45] – Comparisons to other justices, scale and frequency of gifts
• [10:39] – Supreme Court's lack of enforcement mechanisms
• [11:19] – Calls for investigation and possible criminal referral
• [13:47] – Potential for Roberts and the Court to enforce ethics reform
• [17:02] – Real estate deal between Thomas and Crow
• [18:40] – Broader impact on public trust in the Court

Conclusion

The episode provides a thorough and nuanced analysis of Justice Clarence Thomas’s mounting ethical controversies, situating them within a broader pattern of insufficient judicial oversight and rising concerns about the Supreme Court’s legitimacy. The discussion is candid, deeply informed by Mayer's decades of reporting, and raises urgent questions about the integrity of the U.S. judicial system.