What Justice Thomas could learn from the Talmud

His influence on Supreme Court jurisprudence has been marked by close fidelity to the Constitution and fearlessness in challenging the shibboleths of legal fashion. When he writes about racial matters, his words can be fierce and eloquent to the point of incandescence.

His autobiography, "My Grandfather's Son," is a gripping memoir, overflowing with grit, gratitude, and brutal self-criticism. And he inspires deep affection even from colleagues with whom he routinely disagrees. "I just love the man," Justice Sonia Sotomayor has said of Thomas. "He has the same value towards human beings as I have, despite our differences."

It's because I think highly of Thomas that I'm so dismayed to learn that for at least two decades he and his wife have taken extraordinarily luxurious vacations from Harlan Crow, a Texas real estate magnate who is a major donor to conservative organizations with which Thomas and his wife are connected.

"Thomas has accepted luxury trips virtually every year from the Dallas businessman without disclosing them," ProPublica reported on April 5.

[H]e has vacationed on Crow's super-yacht around the globe. He flies on Crow's Bombardier Global 5000 jet. He has gone with Crow to the Bohemian Grove, the exclusive California all-male retreat, and to Crow's sprawling ranch in East Texas. And Thomas typically spends about a week every summer at Crow's private resort in the Adirondacks. ...

These trips appeared nowhere on Thomas' financial disclosures.

One lavish nine-day journey to Indonesia in 2019, ProPublica calculated, may have been worth as much as half a million dollars.

Thomas may not have violated any law or ethics regulations in not disclosing these gifts. That hasn't stopped left-wing critics who detest him for his conservative views from accusing him of being a lawbreaker who ought to be impeached. But a longstanding loophole in the Ethics in Government Act — a loophole that was finally closed last month — exempted judges from having to disclose "personal hospitality of any individual." In a statement responding to the ProPublica story, Thomas said that when he joined the Supreme Court he "was advised that this sort of personal hospitality from a close personal friend, who did not have business before the Court, was not reportable." He also described Crow and his wife as among his family's "dearest friends." That may be so. But they aren't lifelong friends. Thomas didn't become part of the Crows' social circle until he was already a Supreme Court justice.

One federal judge interviewed by CNN confirmed that the old regulations were "kind of confusing" and that "hospitality was never defined." Professor Stephen Gillers, a specialist in legal ethics at the New York University School of Law, told The New York Times: "The rules were very lax and tolerated circumvention, and now [with the exemption eliminated] we've taken a giant step away from that." Arguably, then, Thomas has not overstepped the strict boundaries of the ethics law.

But is that all that matters? Even if there was nothing strictly illegal about accepting such exorbitant gifts from a highly influential business mogul with a deep interest in moving American culture and law rightward, wasn't it manifestly ill-advised? As commentator Mona Charen asked, "Why didn't this give Thomas the willies?" Knowing how ready his ideological foes are to believe the worst about him, why would Thomas not recoil from accepting fantastically luxurious gifts from Crow? And having accepted them, why — if only in the interest of dotting every i and crossing every t — wouldn't he be ultrascrupulous about disclosing them?

Perhaps, as the Times indicated Sunday in an important editorial, it was because taking presents and trips from admirers, often very rich admirers, has become standard operating procedure on the high court.

"Justice Thomas's indulgence is just the latest and most egregious example," the editorial noted, "of a weakness demonstrated by virtually every member of the court for decades, those nominated by Republican and Democratic presidents alike: a willingness to accept freebies, gifts, and junkets — both costly and modest — from people and groups who find it useful to be close to nine of the most powerful people in the United States." Justices Antonin Scalia and Stephen Breyer, for example, each accepted well over 200 trips to far-flung destinations during their years on the court.

Whether narrowly permitted or not, the impropriety of pocketing such bounties should be glaringly obvious. "When the court's members accept benefits from the nation's moneyed elite, no matter their politics," argued the Times, "it sends a signal that ordinary Americans without those resources are at a disadvantage."

As a deeply religious Christian with a strong grounding in the Bible, Thomas knows that Scripture warns judges not to "show partiality" or "accept a bribe." The sages of the Talmud, explicating those verses in a series of vignettes more than 16 centuries ago, emphasized the insidiousness of bestowing even the most modest gift or favor to a judge.

In one case, a judge named Rabbi Ishmael was scheduled to hear a case in which one of the litigants happened to be a tenant farmer on his land. Normally the man delivered his weekly rent — a basket of produce — on Friday, but since he had to come to court on Thursday anyway, he brought the week's payment with him. No one could have construed this as a bribe, since he was only delivering to his landlord the produce he owed him. Still, the judge recused himself and observed the trial from the sidelines.

As he did so, he realized that he was privately rooting for the tenant farmer to win.

"He said to himself: If [the litigant] wants he could claim this, and if he wants he could claim that" — in other words, he kept thinking of ways in which the tenant farmer could win his case. The psychological insight here is profound: Even a modest gesture of goodwill toward a judge — a benefit as trivial as a delivery of produce one day early — can alter how a judge thinks about a case. Can anyone believe that expensive trips and sumptuous hospitality, whether strictly illegal or not, have no impact on the mind of a judge? In modern Washington no less than in ancient Babylonia, judges are affected by such beneficence, no matter how sure they are of their own impartiality.

High court jurists get an annual salary of at least $265,600 plus very generous benefits. They get three months off each year and, upon retiring, a pension equal to 100 percent of their salary for life. They are endowed with enormous prestige and power. Any justice for whom that's not enough is free to resign.

There is no excuse for any judge in America to be accepting opulent gifts from wealthy admirers, least of all a Supreme Court justice. Technically legal it may have been, but what Thomas has been doing is disgraceful.

Jeff Jacoby is a columnist for The Boston Globe, from which this is reprinted with permission."