The current U.S. Supreme Court session is drawing to a close. By the end of next month all the decisions will be in — the most momentous always left till the final weeks of June — and the SCOTUS will be silent until it reconvenes on the first Monday in October.
There’s time for Clarence Thomas, as the court’s longest-serving and, at 74, oldest member, to announce his retirement before the session ends.
If Thomas does not retire, he must resign. What Thomas cannot do is remain on the nation’s most critically important judicial body in the face of a series of scandalous revelations by Pulitzer Prize-winning ProPublica about his receipt of hundreds of thousands of dollars worth of unreported gifts from conservative billionaire Harlan Crow. Thomas has been friends with Crow throughout much of his tenure on the SCOTUS.
Thomas, who was appointed in 1991 by George H. W. Bush to succeed Thurgood Marshall, has always been a problematic figure for women and LGBTQ people. He was confirmed in a bad act of white-male quid pro quo collusion that bordered on malfeasance in the midst of Anita Hill’s assertion that Thomas had sexually harassed her to the point of sexual misconduct. Rather than hear her witnesses, then Judiciary Committee chair Joe Biden made a pact with Republican senators, Philadelphia’s Arlen Specter among them, to push Thomas’s confirmation through.
Hill was a subordinate of Thomas’s at the Department of Education and the EEOC (Equal Employment Opportunity Commission), where Thomas was chair. Hill alleged that Thomas made multiple sexual and romantic overtures to her despite repeatedly asking him to stop. These included references to pornography and other graphic sexual statements. Thomas notoriously referred to the confirmation hearings as a “high-tech lynching.” He was confirmed in a 52-48 vote, the tightest margin in over a century.
Biden finally apologized to Hill during the 2020 election, but it was a difficult aspect of Biden’s primary campaign in the midst of the #MeToo movement that Hill had been progenitor of.
Concomitant with Thomas’s legendary misogyny is his anti-LGBTQ history and fervor. Long considered the court’s most conservative justice, Thomas’s anti-LGBTQ stances have been singular and significant.
In Romer v. Evans (1996), Thomas joined Justice Antonin Scalia’s dissenting opinion arguing that Amendment Two to the Colorado State Constitution did not violate the Equal Protection Clause. Colorado voters adopted Amendment 2 to their State Constitution precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their “homosexual, lesbian, or bisexual orientation, conduct, practices or relationships.”
In a 6-to-3 decision, the SCOTUS held that Amendment 2 of the Colorado State Constitution violated the equal protection clause. Amendment 2 singled out “homosexual and bisexual persons,” “imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination.”
In his opinion for the court, Justice Anthony Kennedy noted that Amendment 2, by depriving people of equal protection under the law due to their sexual orientation, had failed to advance a “legitimate government interest.”
Kennedy concluded: “If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”
In Lawrence v. Texas (2003), also authored by Kennedy, the SCOTUS overturned the sodomy laws it failed to overturn in 1986 in Bowers v. Hardwick. The court found that a Texas law criminalizing consensual sexual conduct between individuals of the same sex violates the Due Process Clause of the Fourteenth Amendment. Thomas issued a one-page dissent in which he called the Texas statute prohibiting sodomy “uncommonly silly,” a phrase originally used by Justice Potter Stewart in the original sodomy ruling Bowers v. Hardwick in 1986. Thomas said that if he were a member of the Texas legislature he would vote to repeal the law, as it was not a worthwhile use of “law enforcement resources” to police private sexual behavior. But Thomas also stressed that the Constitution does not contain a right to privacy and so he didn’t vote to strike the statute down. Instead he said this was a states rights issue.
In United States v. Windsor (2013), the court held that Section 3 of the Defense of Marriage Act (DOMA), which denied federal recognition of same-sex marriages, was a violation of the Due Process Clause of the Fifth Amendment. Chief Justice John Roberts and justices Scalia and Samuel Alito authored dissenting opinions, which Thomas joined.
In Obergefell v. Hodges (2015), authored by Kennedy, the majority held that state same-sex marriage bans are a violation of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.
Thomas wrote a dissenting opinion, joined by Scalia, which rejected the principle of substantive due process. According to Thomas, the majority “undermines the political process and threatens religious liberty.” Thomas also rejected the majority view that marriage advances the dignity of same-sex couples.
In Bostock v. Clayton County, Georgia (2020), Thomas joined Alito and Kavanaugh in dissenting from the decision that Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on sexual orientation or gender identity. (Thomas and Alito wrote a dissent together, and Kavanaugh wrote separately.)
GLAAD has a page on Thomas as part of the GLAAD Accountability Project. They note that Thomas wrote that “those who oppose marriage equality will risk being labeled as bigots and treated as such by governments, employers, and schools,” leading to “bitter and lasting wounds.”
In the 2022 Dobbs decision that overturned Roe v. Wade, Thomas suggested that Obergefell and Lawrence were both up for review and should be overturned.
But as the ProPublica investigations of Thomas’s dealings with Harlan Crow have revealed, it is Thomas himself who should be under review and his tenure on the court vacated.
The ethics watchdog group Citizens for Responsibility and Ethics in Washington says Thomas should resign over the conservative mega-donor gifts scandal that includes $150,000 in tuition for the child Thomas and wife Ginni were raising, renovation of Thomas’s mother’s house which Crow also paid for, and two decades of pricey vacations that Crow paid for.
In a letter to Thomas, CREW wrote that Thomas’s actions presented a “grave crisis of institutional legitimacy currently facing the Supreme Court.”
They wrote: “For the sake of the court and for the sake of our democracy which depends on a judiciary that the public accepts as legitimate and free from corruption, we urge you to resign.”
CREW added, “Your conduct has likely violated civil and criminal laws and has created the impression that access to and influence over Supreme Court justices is for sale.”
Thomas has dismissed the accusations and said he didn’t declare gifts from Crow including luxury travel and resort stays, but will do so in future. But Thomas also has failed to respond to the charges about his mother’s house and the tuition.
Judiciary Committee Chair Sen. Dick Durbin has asked Chief Justice Roberts to address these scandals, and said on political talk shows that Roberts “has the power in his hands to change this” and that the “tangled web” around Thomas “just gets worse and worse by the day.”
Democrats on the committee also sent Crow a letter, asking for details of gifts to Thomas.
On May 9, Crow refused a different request from the Senate Finance Committee for a list of gifts given to Thomas. Crow’s attorney, Michael Bopp, called the request “a component of a broader campaign against Justice Thomas and, now, Mr Crow, rather than an investigation that furthers a valid legislative purpose.”
Committee Chair Ron Wyden said Crow may be subpoenaed.
“The bottom line is that nobody can expect to get away with waving off finance committee oversight, no matter how wealthy or well-connected they may be,” Wyden said, adding that the committee would decide “how best to compel answers to the questions I put forward last month, including by using any of the tools at our disposal.”
Thomas’s long history of anti-LGBTQ activism on the court, coupled with his call for overturning critical civil rights legislation for LGBTQ people, as well as his support for religious freedom exemptions to LGBTQ civil rights policies in the states, all suggest his retirement or resignation would benefit the LGBTQ community.
But these scandals are not minor infractions. The scope of Crow’s financial influence over Thomas and his right-wing activist wife cannot be dismissed or discounted. They represent an ethical breach that impacts all levels of the court’s decision-making and raise significant questions going forward about Thomas’s ability to serve responsibly and fairly on the Supreme Court.