Jonathan P. Baird

Older readers may remember the relatively brief Supreme Court tenure of Justice Abe Fortas. Fortas was on the Court between the years of 1965 to 1969. He had been a law professor at Yale and he gained prominence because he was counsel for Clarence Gideon in the famous U.S. Supreme Court case of Gideon v Wainwright. In that case which Fortas won 9-0, he helped establish the Sixth Amendment right to counsel for indigent felony defendants in state courts. That was no small achievement for any lawyer.

A personal friend of President Lyndon Johnson with a reputation for being Johnson’s fixer, Fortas got appointed to the Supreme Court by LBJ. When Chief Justice Earl Warren announced he would step down from the Court in 1968, Johnson nominated Fortas to be Chief Justice.

The nomination for Chief Justice did not proceed smoothly. It was filibustered by Southerners, particularly Sen. Strom Thurmond (R-Ga), who worried Fortas would be too liberal on civil rights. Fortas did not help himself because of a personal extracurricular activity. He taught a summer school course at American University. However, American University did not pay him for the course. Clients from his old private law firm, Arnold and Porter, ponied up $15,000 to pay Fortas for this teaching.

That might not sound like that much but at the time, $15,000 represented 40% of a Supreme Court Justice’s salary.

The teaching gig violated no law but given the funding, it had a bad look. Supreme Court justices were held to a high standard of propriety and Fortas’s past clients had business before the Court. The appearance of impropriety certainly reared its head. Fortas lacked the votes to power through and he had to withdraw his nomination for Chief Justice.

Antisemitism also played a role in sinking the Fortas nomination for Chief Justice. Fortas was Jewish. Sen. James Eastland (D- Miss), chair of the Senate Judiciary Committee, reportedly said,

“After Thurgood Marshall I could not go back to Mississippi if a Jewish Chief Justice swore in the next President.”

Things got further complicated in 1969 when Life Magazine disclosed that in 1966 the Louis Wolfson Foundation started paying Justice Fortas a $20,000 annual retainer for life in return for unspecified consultation. Louis Wolfson came under investigation for securities fraud. In September 1967, he and an associate were convicted of 19 counts of conspiracy and illegal stock sales. Justice Fortas returned the money but the damage was done to his reputation.

Life Magazine reported that without Fortas’s knowledge, Wolfson used the Fortas name in an attempt to stay out of prison. Fortas resigned from the Supreme Court on May 15, 1969 and returned to private practice. He denied wrongdoing but again, the look was very bad.

With Fortas damaged (and before he resigned), then-President Richard Nixon saw an opportunity to move the Court in a more conservative direction. Nixon used Attorney General John Mitchell to pass along negative information to still-Chief Justice Earl Warren. Mitchell falsely told Life Magazine that the Department of Justice had opened a criminal investigation into Fortas. As might have been expected from Tricky Dick, Nixon connived extensively to engineer Fortas’s removal from the High Court.

Other justices had accepted fees from charitable foundations but none came to Fortas’s defense when he presented his problems to a conference meeting of all the justices. Nixon and his henchman Mitchell effectively pressured Fortas to resign. They successfully enlisted Chief Justice Warren to their cause and that spelled doom for Fortas.

I could not help but think about Fortas in hearing about the newest ethical allegations concerning Justice Clarence Thomas. Fortas’s ethical improprieties were much less than the allegations against Justice Thomas. We now know that Thomas accepted and failed to disclose 20 years worth of lavish gifts and luxury travel from a right wing Republican megadonor, Harlan Crow. The Los Angeles Times had first reported on the Thomas-Crow relationship in 2004.

Thomas took many luxury trips to faraway locations on Crow’s 162 foot superyacht . He also used Crow’s private jet. Although allegedly a public servant, Thomas has been living the private life of a billionaire. Over the last 20 years he failed to disclose this “personal hospitality” on his federal financial disclosure forms.

This is not an ethical close call. These gifts absolutely should have been disclosed. Not disclosing gifts likely in the millions of dollars is beyond being a blind spot. It is very arguably criminal. Supreme Court justices are required to disclose perks over $415 if not reimbursed. This includes any transportation that substitutes for commercial transport.

This non-disclosure is hardly Thomas’s only ethical lapse. I am not going to be encyclopedic here but let me mention what I see as ethically the worst. Thomas and his wife Ginni are at the center of a spider web of corruption. During the Tea Party days, Harlan Crow gave Ginni Thomas $500,000 to start her lobbying group. Crow funded Ginni’s $120,000 yearly salary. Justice Thomas failed to disclose his wife’s income on his federal financial disclosure forms that are required by law. That failure occurred repeatedly.

Justice Thomas has also refused to recuse himself from any January 6-related case. He was the only justice to vote to shield White House records and documents held at the National Archives from the January 6 Committee. Those documents include texts between Ginni Thomas and White House Chief of Staff Mark Meadows. Ginni Thomas was an active participant in the plot to overthrow the 2020 presidential election. Justice Thomas’s conflict could not be more apparent.

We do not have a clear picture of how much Ginni Thomas was lobbying on other issues that have come before the Court. Nor do we have a clear picture of Harlan Crow’s financial tentacles. He is a director of the American Enterprise Institute and he serves on the board of the Supreme Court Historical Society. Whether he has personal business connections to specific cases before the Court, he has a profound investment in steering the Court hard right.

Because of dark money we don’t know the full extent of that investment. We don’t know how many amicus briefs Crow has bought or what front groups he has used to bring forward his agenda.

It is worth noting that while not disclosing the gifts he has received, Justice Thomas has long pushed to invalidate all political spending disclosure laws in America. He has insisted that donors have a constitutional right to anonymously influence politics with unlimited amounts of cash. Transparency is Thomas’s enemy which should not be surprising given his track record.

The sheer number of non-reporting events and the dollar value put Thomas in a class by himself as far as corruption goes. Fortas was a minor leaguer next to Thomas. Compared to the 1960’s, there is a greater degree of ethical laxness now. Thomas has taken the appearance of impropriety to a whole new level and nothing is done about it. How embarrassing and shameful for the Supreme Court! Is it any wonder that confidence in that institution has utterly plummeted.