Clarence Thomas' Dangerous Conceit

By Jonathan Turley, Los Angeles Times

06 March 11

The Supreme Court justice argues that criticism of him is an attack on the court itself. But a single justice doesn't define the institution.

ouis XIV of France was infamous for his view that there was no distinction between himself and the state, allegedly proclaiming "L'État, c'est moi" ("I am the State"). That notorious merging of personality with an institution was again on display in a February speech by Supreme Court Justice Clarence Thomas before the conservative Federalist Society.

Thomas used the friendly audience to finally address a chorus of criticism over his alleged conflicts of interest and violation of federal disclosure rules concerning his wife's income. Rather than answer these questions, however, Thomas denounced his critics as "undermining" the court and endangering the country by weakening core institutions.

In January, Common Cause released documents showing that Thomas had attended events funded by conservative billionaires David and Charles Koch. Thomas was even featured in Koch promotional material - along with Glenn Beck, Rush Limbaugh and others - for events that sought financial and political support for conservative political causes.

Worse yet, Common Cause discovered that Thomas had failed to disclose a source of income for 13 years on required federal forms. Thomas stated that his wife, Virginia, had no income, when in truth she had hundreds of thousands of dollars of income from conservative organizations, including roughly $700,000 from the Heritage Foundation between 2003 and 2007. Thomas reported "none" in answering specific questions about "spousal non-investment income" on annual forms - answers expressly made "subject to civil and criminal sanctions."

In the interests of full disclosure, I was consulted by Common Cause before the release of the Thomas documents. I found the violations regarding Virginia Thomas' income particularly alarming.

Virginia Thomas was receiving money from groups that had expressed direct interest in the outcome of cases that came before her husband, including Citizens United vs. Federal Election Commission, in which the court in 2010 struck down limitations on corporate contributions to elections.

A justice is expressly required by federal law to recuse himself from any case "in which his impartiality might reasonably be questioned." This law specifically requires recusal when he knows that "his spouse … has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding."

The financial disclosure forms are meant to assist the public in determining conflicts of interest. Though Thomas clearly could argue that his wife's ties to these organizations were not grounds for recusal, he denied the court and the public the ability to fully evaluate those conflicts at the time. Instead, Thomas misled the public for years on the considerable wealth he and his wife were accumulating from ideological groups.

After Common Cause detailed the violations, Thomas simply wrote a brief letter to the court saying that the information was "inadvertently omitted due to a misunderstanding of the filing instructions."

It is unclear how Thomas will rule in the next case in which an individual is accused of a failure to disclose on tax or other government forms. Thomas is viewed as one of the least sympathetic justices to such defenses. Indeed, last year, he joined a decision in Jerman vs. Carlisle that rejected a defense from debt collectors that their violations were due to misunderstandings of the requirements of federal law and just "bona fide errors." In rejecting the claim that such errors were not intentional, the court reminded the defendants that "we have long recognized the common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally."

None of these issues, however, was addressed by Thomas in his speech to the Federalist Society. Instead, Thomas suggested that his critics were endangering freedom by undermining his authority and, by extension, the authority of the court. He insisted that his wife was being attacked because she believes in the same things he does and because they were "focused on defending liberty." He added:

"You all are going to be, unfortunately, the recipients of the fallout from that - that there's going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties.... And that's long after I'm gone, and that could be either a short or a long time, but you're younger, and it's still going to be a necessity to protect the liberties that you enjoy now in this country."

That was Thomas' Louis XIV moment. Thomas appears to have finally merged his own personality with the institution itself. Thus, any criticism - even criticism that he is harming the court - is an attack on the institution. It is more than an embarrassing conceit; it can be a dangerous delusion for any justice.

The Supreme Court is not composed of nine Atlas-like jurists holding up justice in the United States. Rather, the foundations are laid in the rule of law, which speaks to all Americans in the same voice. The court is "credible," to use Thomas' word, because it is not the extension of the jurists themselves but the law that they are required to follow.

"I am the Court" sounds little better than "I am the State." We will continue to "enjoy" the liberties of this nation not by the grace or grandeur of Justice Thomas but by the simple triumph of principle over personalities.

Jonathan Turley is as professor of law at George Washington University, where he teaches a class on the Supreme Court.