Some additional observations on ProPublica’s article on gifts of luxury trips that Justice Thomas received from Dallas businessman Harlan Crow:
1. As the article notes, “Crow and his firm have not had a case before the Supreme Court since Thomas joined it.” The article states that “the court periodically hears major cases that directly impact the real estate industry,” but it doesn’t offer an example, much less any reason to believe that Justice Thomas’s position in any such case might have been affected by Crow’s generosity to him.
2. A primary purpose of rules that require justices and other judges to disclose gifts is to identify and deter conflicts of interest. It is of course incumbent on all judges to comply with their disclosure obligations even when no such conflicts exist. But as I explained in my previous post, there is a genuine dispute whether the longstanding rules that were revised just a month ago required Justice Thomas to disclose Crow’s gifts of air travel.
The apparent absence of any cases that presented a conflict of interest would not excuse Justice Thomas for a failure to disclose if he were obligated to disclose. But it would diminish the magnitude of any such failure.
3. Apart from the disclosure question: Some people will find it unseemly that Justice Thomas (like Justice William J. Brennan Jr. decades ago) would receive large gifts even from a “genuine friend” (a characterization of the relationship between Thomas and Crow that ProPublica accepts). Others might worry that vacations at luxury resorts might expose a justice to other people eager to influence him. And still others might think it best for a justice to avoid the criticism that such gifts invite. There is of course no consensus on any of these matters, and that explains why existing ethics rules don’t address them.