There is precedent for Clarence Thomas to resign — he needs to step down now

In 1969, Supreme Court Justice Abe Fortas was discovered to have received $20,000 (around $165,000 today) from a prominent Wall Street financier. Despite having returned the money, Fortas resigned soon after the scandal broke, stating in his resignation letter that “the welfare and the maximum effectiveness of the court to perform its critical role in our system of government are factors that are paramount to all others.”

Supreme Court Justice Clarence Thomas, who has become embroiled in controversy over lavish trips and gifts, should consider following in his footsteps.

As the highest court in the land, members of the Supreme Court wield extraordinary power. Most recently, they handed down major decisions on social media — affecting the likes of Google and Twitter — and are soon expected to rule on student loan forgiveness and federal election laws. And it was almost a year ago when they voted to overturn Roe v. Wade and allow the restriction of abortion access for millions, writing that “we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Griswold deals with access to contraception, Lawrence with sodomy laws and Obergefell with marriage equality. 

The U.S. judicial branch is unique in our constitutional system because its members are not elected by the public. Justices are appointed by people we elect, but the public has much less of a direct say in what goes on. Because the court’s relationship to the public is indirect, its perception of fairness is vital. This is particularly true because most federal appointments are for life, so the courts are not regularly reviewed by the public through voting.

Much of the court’s validity stems from its members, who are expected to be of unimpeachable character. The assurance that judges can be relied on as a bastion of logic and propriety is a foundational principle of any legal system. But if the character of the individuals making up the court begins to degrade, it undermines the public’s ability to make face-value considerations of the good faith of the court’s decisions. When we consider the Supreme Court — whose decisions have massive importance on civil rights, election outcomes, our economy and more — it is imperative that its members hold themselves to the highest possible standards of behavior, both on and off the bench.

Justice Clarence Thomas has failed to do that. For the first time in recent memory, a sitting justice’s impropriety has undermined his legitimacy as an impartial actor. By his actions, Thomas has broken with the court’s traditions and has devalued the core political currency of the court: its perceived fairness and integrity. 

Thomas has been thrust into the spotlight of late for failing to disclose decades of luxury vacations and private payments from Harlan Crow, a billionaire real estate developer. Totaling in the hundreds of thousands, the payments covered tuition fees for a child the high court justice was raising and a home for his mother. Crow is an active conservative political donor, and organizations affiliated with him have filed amicus briefs with the Supreme Court in the past.

Thomas benefitted from his friendship with Crow in other ways. Reports show that Thomas would use Crow’s private jet and yacht for travel and vacations — Thomas’s 2019 trip to Indonesia would have cost $500,000 had he chartered them himself. Thomas also accepted several trips to Crow’s properties around the country, including Crow’s ranch and private resort. Crow also would frequently give Thomas gifts, including a $19,000 Bible and a commissioned portrait of Thomas and his wife, Ginni. 

According to reports, Thomas has accepted vacations from Crow almost every year without disclosing them. The gift rules for Supreme Court justices have always been murky, defining “personal hospitality” as something justices need not report. These rules have been revised and updated over the years, however, and now mandate reporting of “transportation that substitutes for commercial transportation.” Thomas has offered justifications for his lack of reporting, and there are controversies as to which rules he violated and when.

There are also reports that Thomas’s wife received secret payments from a conservative judicial activist who specified that there be “no mention of Ginni” in the paperwork. She also fanned the flames of conspiracy when she made claims that the 2020 presidential election was fraudulent. Last year, a report found that Ginni “pressed 29 Republican state lawmakers in Arizona” to overturn Donald Trump’s defeat. While justices are not their spouses, such activity from a spouse certainly raises a question of objectivity. 

Justice Thomas has diminished the legitimacy of the court by signaling that his vote could be for sale, whether for money or through political capital for him and his family.

His behavior has contaminated the court, and many Americans know it. Polling shows that 56 percent of Americans think Thomas should resign. That includes 60 percent of independents and 16 percent of an increasingly staunch Republican voter base. Additionally, 66 percent of all American respondents support the creation of a Supreme Court ethics code that limits the gifts justices can receive. In that poll, support exceeded opposition among independent voters.

The stakes could not be higher. This data signals a change in public perception that threatens the entire judiciary. If the integrity of a court’s decisions begins to be called into question, the country will no longer feel they can rely on it for consistently fair rulings. The Supreme Court is expressly designed to be above partisanship — it is crucial that the court’s traditions and history be brought to bear on Thomas’s conduct. He should not get a free pass due to ambiguity, allowing people to live in the gray area encourages further shady behavior.

In the face of impropriety, there is precedent for resignation. Abe Fortas bowed out to shield the Supreme Court from further controversy. Justice Clarence Thomas should do the same.

Christy Setzer is president of New Heights Communications. Prior to that, she served as a national spokesperson on the presidential campaigns of former Vice President Al Gore, former Vermont Gov. Howard Dean and former Sen. Christopher J. Dodd (D-Conn.), and set national communications strategy and directed media relations for the AFL-CIO, Planned Parenthood Federation of America and the Service Employees International Union.