Did Clarence Thomas break the law? No one knows, and that’s the scandal.

A ProPublica report Thursday said that Thomas and his wife traveled through Indonesia aboard Harlan Crow’s 162-foot yacht, vacationed almost every summer at his luxurious New York resort and flew on his private plane around the world on trips worth hundreds of thousands of dollars. 

Judicial ethics experts disagree on whether Thomas violated the law by not revealing the hospitality on his annual financial disclosures. A federal statute governs gifts to judges, but its wording is open to interpretation and the justices have questioned whether it can constitutionally be applied to them. Unlike lower court judges, the Supreme Court isn’t formally bound by any code of conduct.

“This is why the Supreme Court needs a code of conduct,” said Steven Lubet, a judicial-ethics expert at Northwestern University’s Pritzker School of Law. “They’re just operating in a standards-free zone.”

The court has faced a string of ethics scandals and controversies over the past year. The one that reverberated the most was the May leak of the court’s draft opinion overturning the constitutional right to abortion, for which the court has yet to identify the culprit. A New York Times report in November said a network of anti-abortion activists used a charity tied to the court to cultivate relationships with the justices and try to influence them.

Thomas, the 74-year-old anchor of the court’s conservative wing, has been at the center of much of the criticism. His wife, right-wing activist Virginia “Ginni” Thomas, lobbied former President Donald Trump’s chief of staff, Mark Meadows, to work to overturn the results of the 2020 election. Although that push helped lay the groundwork for the Jan. 6 Capitol riot, Thomas later declined to recuse himself from a case involving the release of White House records concerning Jan. 6.

Thomas did disclose a 2015 gift from Crow — a bronze bust of abolitionist Frederick Douglass valued at $6,484 — but his reports don’t mention the vacations and other travel on Crow’s plane. The filings include more routine items, such as income for teaching at several law schools and reimbursement for travel and lodging expenses when Thomas gave out-of-town speeches.

RV Parks

The opulence of Thomas’s reported vacations with Crow stands in contrast to the humble image he has portrayed publicly. Born into poverty in rural Georgia, Thomas has styled himself as someone who disdains liberal elites, preferring the company of the people he and his wife meet while traveling the country in their recreational vehicle during the court’s summer recesses.

 “I prefer the RV parks. I prefer the Walmart parking lots to the beaches and things like that. There’s something normal to me about it,” ProPublica quoted Thomas as saying in a recent documentary financed in part by Crow. “I come from regular stock, and I prefer that — I prefer being around that.”

Thomas didn’t have any immediate comment on the story. Crow said in an emailed statement that the Thomases are “dear friends” who never asked for the hospitality they received.

“The hospitality we have extended to the Thomases over the years is no different from the hospitality we have extended to our many other dear friends,” Crow said.

Murky Rules

Critics say Thomas’s failure to disclose the trips violates a federal law that requires judges, including Supreme Court justices, to detail gifts above a few hundred dollars. That law exempts “personal hospitality,” including meals and accommodations at the homes of friends.  

The law is less clear when it comes to transportation, including private jet travel, though a panel that sets policy for the federal judiciary recently clarified that judges should disclose those types of gifts. Those amendments also said disclosure is required when a friend pays for a stay at a commercial property, such as a resort.

“There’s nothing wrong with having these types of interactions with friends, but there is something wrong with not disclosing it in compliance with the law,” said Kedric Payne, vice president and general counsel of the Campaign Legal Center.

But Stephen Gillers, a judicial-ethics expert at New York University School of Law, said that before the clarification justices were able to claim an exemption from reporting as long as the invitation came from a person, and not a corporation. “Transportation was exempt from reporting without qualification,” Gillers said.

Lubet called the law “ambiguous,” though he faulted Thomas for not erring on the side of disclosure.

“There’s not anything that would have prevented Justice Thomas from including this on his annual disclosure, but he chose not to,” Lubet said.

Congressional Push

The revelations have reenergized a years-long effort in Congress to impose the type of ethics code that applies to other federal judges.

“As long as nine justices are exempt from any process for enforcing basic ethics, public faith in the Supreme Court will continue to decline, and dark money and special interests will maintain their relentless grip on our democracy,” said Democratic Senator Sheldon Whitehouse of Rhode Island.

Whitehouse is a co-sponsor of legislation to require justices to adopt and follow a code of ethics that would be reviewed by appellate court judges. The bill, which would also force justices to disclose more information about gifts and travel, was passed out of a House committee last year but has since stalled.

Another bill, co-sponsored by Democratic Georgia Representative Hank Johnson and Democratic Connecticut Senator Chris Murphy, would create a Supreme Court ethics officer and set up a process for filing complaints against the justices for ethical violations.

The push extends beyond Congress. The American Bar Association this year passed a resolution urging the Supreme Court to adopt a code similar to the standards that federal judges have to follow.

But even if it succeeds, the legislative effort could find itself at the mercy of the court, which has suggested Congress might not have the constitutional power to impose ethics rules on the justices. 

“The court has never addressed whether Congress may impose those requirements on the Supreme Court,” Chief Justice John Roberts said in his 2011 year-end report. “The justices nevertheless comply with those provisions.”