Supreme Court justices are allowed to have friends

Twenty-five years ago, I wrote the first book about Clarence Thomas’s legal theory, “First Principles: The Jurisprudence of Clarence Thomas.” Other scholars and journalists had published books about Justice Thomas before mine, but their books focused on the confirmation hearings battle over whether Thomas had sexually harassed Anita Hill during their tenure together at the U.S. Department of Education and the Equal Employment Opportunity Commission.

At the time my book went to press, at least 15 books had been published on the Thomas-Hill saga, including two best-sellers. I had hoped that my book about Justice Thomas’s jurisprudence would encourage people to focus on his judicial opinions and votes rather than his personal life. Clearly, I was being naive.

In December Thomas’s critics called for his removal from the bench after the Washington Post reported that his wife had encouraged former White House Chief of Staff Mark Meadows to attempt to overturn the results of the 2020 election.

Unfortunately for Justice Thomas’s critics, however, Mrs. Thomas informed the House Select Committee to Investigate the January 6th Attack on the United States Capitol that she never discussed any activities surrounding the 2020 election with her husband, and the committee found no reason to conclude otherwise.

The calls for Thomas’s removal from the bench were renewed recently after Pro Publica published a report alleging that Thomas and his wife had taken a number of trips during the past 20 years paid for by Republican billionaire Harlan Crow. Indeed, it seems that nary a year goes by without someone accusing Justice Thomas of something that, the accuser insists, necessitates his resignation or impeachment.

I strongly suspect that the latest brouhaha about Justice Thomas’s personal life will go nowhere. Although journalists who have long opposed Thomas will continue to write articles with inflammatory titles such as “Clarence Thomas Broke the Law and It Isn’t Even Close,” many experts on judicial ethics disagree. Stephen Gillers of NYU School of Law, for one, told NBC News shortly after the release of the Pro Publica report that “In my view, before the recent amendments [to the disclosure rules], the situation was sufficiently vague to give Thomas a basis to claim that reporting was not required.”

Thomas released a statement on Friday saying precisely that. “Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas said in the statement. “I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”

Crow told Pro Publica that he and Thomas never discussed a case that was pending before the court.

Though none of us know for certain what transpired between Thomas and Crow, I believe them. I met Crow once. I was on sabbatical at another university at the time and that university had given him an autographed copy of my book about Justice Thomas. He thanked me for it, and it was clear to me from how he thanked me – genuinely, effusively, warmly – that he was very close friends with Justice Thomas.

Supreme Court justices are allowed to have friends, even if a particular friend is rich and a particular justice is conservative. Clarence Thomas has written a lot of important Supreme Court opinions during his three decades on the bench. I recommend that we spend our time addressing those and leave his personal life to him.

Scott Douglas Gerber is a law professor at Ohio Northern University. His ten books include “First Principles: The Jurisprudence of Clarence Thomas” (NYU Press).