--:-- [Theme music fades out]
--:-- Sean Rameswaram: For almost one month now, stories have been trickling out about the personal finances of United States Supreme Court justices. Private jets, real estate deals, conflicts of interest. The kinds of things you'd want to disclose to your boss if you were an unelected government employee who wielded godlike powers.
--:-- Sean Rameswaram: Except the justices weren't doing a ton of disclosing. And it's been raising lots of eyebrows. And today, all that eyebrow raising culminated in a Senate judiciary hearing. Highest court in the land should not have the lowest ethical standards.
--:-- Sean Rameswaram: We're holding our own hearing at Today Explained. We're going to talk to a guy who helped break the original story about Clarence Thomas and his billionaire bestie. And we're going to ask why the Supreme Court is so bad at accountability and whether its current corruption crisis might change anything.
--:-- Sean Rameswaram: Oh, yeah. Oh, yeah. Oh, yeah. Oh, yeah. Oh, yeah. Oh, yeah. Oh, yeah. Oh, yeah. Oh, yeah. Oh, yeah.
--:-- Sean Rameswaram: Support for Today Explained comes from Saks Fifth Avenue. Fall is here. Might be time to find some nice new pieces you can wear again and again. With Saks Fifth Avenue, it can be a breeze to shop for your personal style, like maybe a relaxed Prada blazer or Gucci loafers that are great for both work and the weekend.
--:-- Sean Rameswaram: This is very Sean. This is very Sean-coded. Gucci loafers. Saks says Saks makes shopping feel totally customized to you, whether that's from an in-store stylist or a visit to Saks.com, where they can show you just what you want to see.
--:-- Sean Rameswaram: They say they'll even let you know when arrivals from your favorite designers are in or when something you've been eyeing is back in stock. You can find inspiration for your personal style every day at Saks Fifth Avenue.
--:-- Sean Rameswaram: Support for this show comes from strawberry.me. Be honest. Are you happy with your job? Or are you stuck in one you've outgrown? Or never wanted in the first place? Sure, you can probably list the reasons for staying, But are they actually just excuses for not leaving?
--:-- Sean Rameswaram: Let a career coach from strawberry.me help you get unstuck. Discover the benefits of having a dedicated career coach in your corner. Go to strawberry.me slash unstuck to claim a special offer.
--:-- Sean Rameswaram: Joshua Kaplan was one of three reporters who broke a story at ProPublica about Justice Clarence Thomas and his big billionaire bro, Harlan Crow.
--:-- Sean Rameswaram: We asked him why he was looking at Clarence's finances in the first place.
--:-- Joshua Kaplan: Well, we didn't start by looking just at Clarence Thomas. We started looking at travel and we found evidence that Clarence Thomas had flown on this billionaire Harlan Crowe's private plane from DC to New Haven and back for a visit that lasted only three hours.
--:-- Joshua Kaplan: It looked like he was flying on this jet for a lunchtime appointment. We weren't sure what he was there for. But we talked to other private jet charter companies And they told us that, you know, renting a jet for a trip like that would cost about $70,000.
--:-- Joshua Kaplan: Wow. How much money does Clarence Thomas make a year as a Supreme Court justice? He makes $285,000 a year. So goes without saying, he probably didn't drop $70,000 on a private jet out to Connecticut for a few hours.
--:-- Joshua Kaplan: So let's ask, who is Harlan Crowe?
--:-- Joshua Kaplan: So Harlan Crowe is a real estate billionaire who lives in Dallas. He oversees his family real estate empire. It's called Crow Holdings. Part of the whole goal was to succeed as a group of people working together. The idea of if you earn a dollar, you share that dollar. And it doesn't belong to me, it belongs to us.
--:-- Joshua Kaplan: And he is also a very influential figure and has been for a long time in pro-business conservative politics. He's a major Republican donor, has given many millions of dollars to campaigns and political causes. And he's also given millions to ideological efforts to move the law and the judiciary further to the right, you know, like the Federalist Society.
--:-- Joshua Kaplan: The Federalist Society is a beacon of hope for conservative and libertarian lawyers that believe in a constitutionally based federal government and a judiciary that says... He also sits on the boards of major conservative think tanks that publish scholarship advancing very specific conservative legal theories and whose scholars occasionally file amicus briefs with the Supreme Court.
--:-- Joshua Kaplan: And once you found out about Clarence Thomas' very expensive lunch to Connecticut, what else did you find out about his financial relationship with Harlan Crowe?
--:-- Joshua Kaplan: Yeah, so, I mean, first there were the trips. And, you know, to name one recent example, in 2019, Clarence Thomas flew to Indonesia on Harlan Crowe's private jet and then spent nine days island hopping on Crowe's super yacht, which is staffed with private chefs, a host of stewardesses.
--:-- Joshua Kaplan: and we were told that if he was to charter that plane and that yacht himself, the trip could have easily cost $500,000.
--:-- Joshua Kaplan: Then we had our second story. We also found a direct financial transaction, the first known direct financial transaction between these two men, which was an undisclosed real estate deal.
--:-- Joshua Kaplan: So Harlan Crowe spent roughly $133,000 to buy three properties from Clarence Thomas and his relatives, one of which was the house, this old single-story house where Thomas's mom was living, and the others were two vacant lots down the street.
--:-- Sean Rameswaram: Just to be clear here, you're saying that Harlan Crow bought Clarence Thomas's mother a house?
--:-- Joshua Kaplan: He bought Clarence Thomas's mother's house where she was living from Clarence Thomas.
--:-- Sean Rameswaram: And then she kept living there. CNN has reported that she's not paying rent.
--:-- Sean Rameswaram: Another thing we found is that she's still living there today. It's about 10 years later.
--:-- Sean Rameswaram: And shortly after Crowe bought the house, this local award-winning architecture firm began work on tens of thousands of dollars of improvements on the property.
--:-- Sean Rameswaram: Why is this happening? If she already had the house, why did this guy buy her house and then start renovating it for her? Do we have any idea?
--:-- Joshua Kaplan: Well, Crowe told us that he bought it because he intends to one day eventually make it into a museum.
--:-- Sean Rameswaram: Like the Museum of Clarence Thomas?
--:-- Joshua Kaplan: The Museum of Clarence Thomas.
--:-- Sean Rameswaram: This is a house where he spent part of his childhood. It is, you know, an important property in his life.
--:-- Joshua Kaplan: And Crowe told us that he approached Thomas and his family about making this purchase.
--:-- Sean Rameswaram: Crowe has never directly addressed the question of why he also bought two vacant lots from Clarence Thomas that are down the same street.
--:-- Sean Rameswaram: And so the exact details of the motivation there are a bit less clear.
--:-- Joshua Kaplan: How unusual is all of this? The trips to Indonesia, the private jet to Connecticut, the buying of his mother's house and two other lots that he owns.
--:-- Joshua Kaplan: There is no known precedent for this in the modern history of the U.S. Supreme Court in terms of the scale, the frequency, the lavishness.
--:-- Sean Rameswaram: And we talked to experts and a number of current and former federal judges who told us Thomas has broken long-standing norms for judges' conduct.
--:-- Sean Rameswaram: I think it's worth noting that judges are supposed to conduct themselves with a level of probity that exceeds even that what we expect from our other public officials.
--:-- Sean Rameswaram: I mean, they have lifetime tenure because they're expected to remain independent and to conduct themselves in a way that promotes confidence in the judiciary and stay insulated from the pearly-burly of Washington politics.
--:-- Sean Rameswaram: Okay, we're talking about norms. We're talking about standards. Is any of this actually illegal?
--:-- Joshua Kaplan: Experts told us that Thomas appears to have broken the law, although maybe not in the way that you'd expect.
--:-- Joshua Kaplan: So there are very few rules restricting what gifts Supreme Court justices can accept. And that's a stark contrast to the other branches of government.
--:-- Joshua Kaplan: There are a lot of rules for Congress, for instance, when it comes to accepting gifts. But with the Supreme Court, it's pretty much anything goes.
--:-- Sean Rameswaram: And so there's not really any question that by accepting an extraordinarily expensive trip to Indonesia, that was okay in terms of the law.
--:-- Joshua Kaplan: Where he appears to break the law, experts told us, is that he didn't disclose any of this.
--:-- Joshua Kaplan: So there's a landmark government ethics law that was passed after Watergate that requires Supreme Court justices and many other high-level government officials to disclose most gifts to the public, to disclose most real estate transactions over $1,000.
--:-- Sean Rameswaram: And experts told us that by not disclosing things like flights, by not disclosing the money he received from Crow, Thomas appears to have clearly violated the law.
--:-- Sean Rameswaram: What's Justice Clarence Thomas saying about all this?
--:-- Joshua Kaplan: We went to him for our first story about travel. He didn't respond to us, the detailed questions we sent him.
--:-- Sean Rameswaram: But the day after it published, and it was causing a fairly heated response in Washington. He released a statement where he said, Harlan and Kathy Crow are among our dearest friends and we have been friends for over 25 years.
--:-- Sean Rameswaram: As friends do, we have joined them on a number of family trips. During the more than a quarter century, we have known them.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: After we received that statement, we went to seven ethics law experts, including former ethics lawyers for the White House and Congress who'd served in both administrations of both parties.
--:-- Sean Rameswaram: And they all told us Thomas clearly had to disclose things like private jet flights and that if he's arguing otherwise, he's simply incorrect.
--:-- Sean Rameswaram: Now, the real estate transaction, Thomas hasn't said anything.
--:-- Sean Rameswaram: CNN had a report citing an anonymous source close to Thomas that he intends to amend his disclosure and essentially that he misunderstood the rules.
--:-- Sean Rameswaram: We've gone to Thomas saying, is this true? He hasn't responded to that either.
--:-- Sean Rameswaram: And so far, you know, that amended report hasn't been made public.
--:-- Sean Rameswaram: Your reporting on Clarence Thomas seems to have led to other reporting from other outlets about other justices.
--:-- Joshua Kaplan: What else have we found out in the intervening weeks?
--:-- Joshua Kaplan: There have been a number of reports. Politico reported that Neil Gorsuch sold a property he had a stake in to a lawyer at a major law firm.
--:-- Sean Rameswaram: And that he sold it, I think it was nine days after he became a justice, which he disclosed the sale, unlike Thomas.
--:-- Sean Rameswaram: He did not disclose who he was selling it to, which is a bit of a murkier legal question at that point, although there was a box on the form for him to list that.
--:-- Sean Rameswaram: There was also a report last week from Business Insider about John Roberts' wife and her job, which is essentially a headhunter for corporations and law firms looking for top employees in the amount of money she's made off of this.
--:-- Sean Rameswaram: How much money has she made off of it? I think it was about $10 million over the years.
--:-- Sean Rameswaram: $10 million. Yeah. I mean, and, you know, she was a successful lawyer before Roberts went on the court.
--:-- Sean Rameswaram: You know, this is her job. She is being paid for her job, although it is an eye-popping amount of money.
--:-- Sean Rameswaram: And some of these firms have had business before the court. And so I think there a long history of questions being raised about family and spouses of public officials and whether they trading on their spouse public position
--:-- Sean Rameswaram: I think the root issue here is that the Supreme Court has very, very little transparency and very, very little oversight compared to virtually every other part of the federal government.
--:-- Sean Rameswaram: And for a long time, Supreme Court justices have been left almost entirely to police themselves.
--:-- Sean Rameswaram: And we're seeing that maybe they're not that good at it.
--:-- Sean Rameswaram: Josh Kaplan, ProPublica. Find his reporting at ProPublica.org.
--:-- Sean Rameswaram: In a minute, what it would take to get someone else to police the various financial schemes of the Supreme Court justices.
--:-- Sean Rameswaram: Support for Today Explained comes from Built Rewards. These days, it seems like everybody has a rewards program. You swipe your card and you get one cent on the hundred dollars. But with your rent, frequently, you just pay month after month. You never get anything from it other than that roof over your head.
--:-- Sean Rameswaram: Not anymore, says Built Rewards. Built Rewards says it lets you earn points on your rent. By paying rent through Built, they say you can earn flexible points that can be redeemed toward hundreds of hotels and airlines, perhaps a future rent payment, your next Lyft ride, and so much more.
--:-- Sean Rameswaram: Your home isn't just where you sleep, it's your community, and Built wants you to go out and do things in the community. You can eat at your favorite local restaurants, then earn more points. You can get VIP treatment at certain fitness studios. You can enjoy exclusive experiences just for Built members every month.
--:-- Sean Rameswaram: When you're ready to travel, they say Built points can be converted to miles or hotel points all around the world. You can earn points on rent and around your neighborhood wherever you call home by joining built.com slash explained.
--:-- Sean Rameswaram: That's J-O-I-N-B-I-L-T dot com slash explained.
--:-- Sean Rameswaram: Today, explain is back. We are here with Ian Millhiser, senior correspondent at Vox, who covers the Supreme Court.
--:-- Sean Rameswaram: Ian, it seems like the Supreme Court justices really like to fuck around. Are they ever going to find out?
--:-- Ian Millhiser: The bad news is probably no.
--:-- Ian Millhiser: The reason why they get away with this over and over and over again is that the only real way to remove a justice of the Supreme Court is via impeachment.
--:-- Ian Millhiser: And it's just very, very unlikely that the super majority of senators that would be necessary to remove a justice is going to come together no matter what these guys do.
--:-- Sean Rameswaram: And to let people into like a little today explained behind the scenes here, about a month ago when ProPublica first reported this story about Clarence Thomas and his ties to Harlan Crow, I reached out to you on Slack and said, Ian, are we going to do this show? Are you writing about it?
--:-- Ian Millhiser: Yeah, I mean, I'm jaded. There were a bunch of very similar Clarence Thomas related scandals that broke.
--:-- Ian Millhiser: It came out that he had accepted a, I believe it was a $15,000 bust of Abraham Lincoln from the American Enterprise Institute, which is a conservative.
--:-- Sean Rameswaram: Yeah, I know. Like this man just loves his art, I guess.
--:-- Ian Millhiser: That sounds like something you would find at Goodwill.
--:-- Sean Rameswaram: Exactly. I mean, this conservative think tank decided they needed to give it as a gift to a sitting Supreme Court justice.
--:-- Sean Rameswaram: And I will point out that AEI filed several briefs in front of the Supreme Court. It doesn't take an ethics scholar to figure out why this should not be happening.
--:-- Ian Millhiser: But nothing ever gets done, even though we've known about this relationship that Thomas has with Harlan Crow for a very long time.
--:-- Sean Rameswaram: Have people tried to do anything about these ethical concerns at the Supreme Court before?
--:-- Ian Millhiser: Yes, but never with any success.
--:-- Ian Millhiser: You know, when the news broke in 2011 that Thomas was taking all of these gifts, there was some noise in Congress about maybe doing something about it.
--:-- Sean Rameswaram: The chief justice, every year he releases an annual report, his annual report on the federal judiciary.
--:-- Ian Millhiser: And he devoted much of his report that year to the calls for an ethics code for the Supreme Court.
--:-- Sean Rameswaram: But basically what he did was, you know, in a very polite judicial tone, give Congress both middle fingers and say, no, you're not imposing an ethics code on him.
--:-- Sean Rameswaram: In fact, that 2011 report repeatedly suggested it would be unconstitutional for Congress to impose an ethics code on the Supreme Court.
--:-- Sean Rameswaram: The argument is some sort of vague separation of powers that, you know, the Supreme Court is an entity created by the Constitution itself.
--:-- Sean Rameswaram: And therefore, Congress has very limited authority to regulate the Supreme Court.
--:-- Ian Millhiser: You know, Congress has a tremendous amount of control over the Supreme Court's docket.
--:-- Sean Rameswaram: You know, it used to it has the power to decide almost to the level of which cases the court hears and which cases it doesn't hear.
--:-- Sean Rameswaram: So I don't really buy this argument.
--:-- Sean Rameswaram: But the problem is, it doesn't matter what I think.
--:-- Sean Rameswaram: What matters is whether there's five justices to strike down an ethics code.
--:-- Sean Rameswaram: And at least in 2011, the court seemed to be hinting that, yeah, they would strike it down if they didn't like the ethics code.
--:-- Sean Rameswaram: What about in 2023? I mean, you've got bad press for Justice John Roberts. You've got bad press for Neil Gorsuch. You've got bad press for Clarence Thomas.
--:-- Sean Rameswaram: Nobody likes bad press.
--:-- Ian Millhiser: Do you think there is a growing consensus amongst the nine justices that maybe we should submit ourselves to a higher ethical standard?
--:-- Ian Millhiser: I don't know if the justices have figured this out yet but like it in their interest to have an ethics code
--:-- Sean Rameswaram: And the reason it is in their interest is because in addition to this Clarence and like the Clarence Thomas scandal is egregious
--:-- Sean Rameswaram: You know for 25 years he been accepting massive gifts from this billionaire.
--:-- Sean Rameswaram: I mean, this is as bad as the Abe Fortas scandal in the 1960s, which was a different corruption scandal that led to Justice Abe Fortas resigning from the court.
--:-- Sean Rameswaram: In these circumstances, it seems clear to me that it is not my duty to remain on the court, but rather to resign in the hope that this will enable the court to proceed with the vital work free from extraneous stress.
--:-- Sean Rameswaram: That was written by Supreme Court Justice Abe Fortas in his 1969 letter of resignation from the Supreme Court because he had subjected the court to not quite two weeks of controversy, about twenty thousand dollars that he had received from a foundation three years earlier in his first year on the Supreme Court.
--:-- Sean Rameswaram: So, like, if you look at what Gorsuch is accused of, for example, he had a property that I think he has a one third ownership stake in out in Colorado that he was trying to sell.
--:-- Sean Rameswaram: He'd been trying to sell it for, I think, like two years. And then nine days after he was confirmed to the Supreme Court, someone bought it and the person who bought it was the chief executive of a major law firm that practices in front of the Supreme Court.
--:-- Sean Rameswaram: And so if the Supreme Court had an ethics code, what it could do is it could have an outside body whose job is to look at these kinds of transactions.
--:-- Sean Rameswaram: It could ask questions like, you know, was the property bought at fair market value? Was this an arm's length transaction? Did Gorsuch know who the buyer was? You know, did the buyer know that Gorsuch was one of the sellers?
--:-- Sean Rameswaram: Like there's all sorts of questions that if the Supreme Court had its own ethics authority over its own ethics board, it could submit these questions to that authority.
--:-- Sean Rameswaram: And the authority might come back and say, yeah, like there's smoke here, but there's no fire like this transaction turns out to be fine.
--:-- Sean Rameswaram: So you're saying that nothing's going to happen unless the justices decide to sort of self-police, which is rare, right?
--:-- Ian Millhiser: You seldom see a group of powerful people surrender power.
--:-- Sean Rameswaram: Why is it that the writers of the Constitution didn't bake something like this into the document?
--:-- Ian Millhiser: There's just new issues that come up.
--:-- Sean Rameswaram: One reason why John Roberts is in a bit of hot water right now is because his wife, Jane Roberts, is a legal recruiter and she helps recruit lawyers at law firms that practice in front of the Supreme Court.
--:-- Sean Rameswaram: That's not an issue that would have come up at the founding because the founders were pretty sexist.
--:-- Sean Rameswaram: And, you know, the idea that you would have someone on the Supreme Court who has a spouse who is also themselves a very high powered professional with a very high powered career.
--:-- Sean Rameswaram: That just wasn't something that existed in the 1790.
--:-- Sean Rameswaram: As these new issues come up, you need to come up with rules to navigate them.
--:-- Sean Rameswaram: But the problem is that the Supreme Court hasn't done that work.
--:-- Sean Rameswaram: And now there's this hearing on Capitol Hill today to talk about this.
--:-- Sean Rameswaram: But there's also a piece of legislation from Senators Angus King and Lisa Murkowski.
--:-- Sean Rameswaram: This is not a radical idea. Every judge in the country, except for these nine, have to follow a code of conduct.
--:-- Ian Millhiser: What are they trying to do?
--:-- Ian Millhiser: So it's a pretty vague piece of legislation, to be honest.
--:-- Sean Rameswaram: You know, the first thing that it does is it just says the Supreme Court has to come up with its own ethics code, I think within a year.
--:-- Sean Rameswaram: The other thing that does is requires the Supreme Court to appoint some individual who will be their ethics monitor and that will be responsible for these questions of, you know, if a justice sells some property and it turns out they sold the property to a lawyer, let's have a third party look at that transaction and make sure that it's above board.
--:-- Sean Rameswaram: And it doesn't mean that a justice is never allowed to sell their land.
--:-- Sean Rameswaram: But what it does mean is that we need to have someone, you know, making sure that nothing was done in a way that creates a conflict of interest.
--:-- Sean Rameswaram: Is there any chance that this could become law?
--:-- Ian Millhiser: Unlikely.
--:-- Ian Millhiser: I mean, Republicans control the House and I think Republicans are reluctant to embarrass someone like Clarence Thomas.
--:-- Sean Rameswaram: Well, it's not going to work.
--:-- Sean Rameswaram: This assault on Justice Thomas is well beyond ethics. It is about trying to delegitimize a conservative court that was appointed through the traditional process.
--:-- Sean Rameswaram: And so I fear that the combination of Thomas's resistance to any meaningful ethics code and Republican members of Congress being reluctant to embarrass Clarence Thomas is going to make it hard for us to get any kind of code in place.
--:-- Sean Rameswaram: Any kind of reform that would happen, I think, would have to come, you know, at the soonest after the next election and then only if Democrats have a blowout election.
--:-- Sean Rameswaram: But I think that at least within the Democratic Party, there's a real sense that the court has gone off the rails both because of its substantive decisions and because of fears of corruption.
--:-- Sean Rameswaram: And, you know, if I were a justice, I would be concerned that Congress is going to start making my life more difficult unless the justices start showing that at the very least they aren't going to keep accepting, you know, trips on super yachts from billionaires.
--:-- Sean Rameswaram: Ian Millhiser, Vox.com.
--:-- Sean Rameswaram: Our show today was produced by Halima Shah and Siona Peterous.
--:-- Sean Rameswaram: They had help from Amin Al-Sadi, Laura Bullard, Serena Solon, and Paul Robert Mounsey.
--:-- Sean Rameswaram: I'm Sean Rameswaram, and this is Today Explained.
