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  • Writer's pictureMarc Johnson

The Word is Ethical

Thomas and Fortas, Separated Only By Time

In a completely fascinating piece in the current New Yorker, Supreme Court watcher Jeffrey Toobin has what many will consider a surprising take on Justice Clarence Thomas:

“In several of the most important areas of constitutional law,” Toobin writes, “Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.”

At the same time, Toobin writes that Thomas and his politically ambitious and well-connected wife Ginni are becoming ever more involved with a collection of very conservative interests determined to see, among other things, Barack Obama’s health care reforms ruled unconstitutional. Thomas is more and more the champion on our badly divided Supreme Court of a judicial philosophy that places little if any importance on precedent or predictability in the law. In short, Thomas has become the ultimate activist judge; one not only willing, but seemingly eager to overturn what lawyers and most judges call “settled law.”

By this time next year it’s entirely possible Thomas and his colleagues will have heard the various appeals about the health care reforms and, one way or the other, their decision will send the Court into the middle of the next presidential election. It won’t be the first time the Court has been in the middle of a big political fight, but given the increasingly open activism of Thomas, the Court may well be subjected to a new level of scrutiny and criticism. Already the dots connect a little too comfortably between the  ethically challenged Great Society Justice, Abe Fortas, and the Justice from Pin Point, Georgia, Clarence Thomas.

In 1968 a lame duck Lyndon Johnson appointed his old friend and regular political advisor Abe Fortas to be Chief Justice of the Supreme Court. Fortas, already on the Court and increasingly, thanks to his brilliant liberal mind, becoming the intellectual leader of the gang of nine, eventually was forced to resign when his ethical lapses caught up with his liberal politics. The Senate refused to confirm Fortas sending a sharp rebuke to LBJ.

Clarence Thomas would be the last to place himself in the company of an unreconstructed New Deal liberal like Abe Fortas, so let me do it for him.

Both men, decades apart chronologically and poles apart politically, nevertheless brought to the high court a fundamental political agenda. Thomas’ life, before his appointment by George H.W. Bush, had been a life in politics, including work on Capitol Hill and in federal agencies. While it is impossible to diminish Thomas’ compelling, dramatic personal story, he’s where he is because of politics. So was Abe Fortas.

Fortas got his start in the Roosevelt Administration in a series of jobs in the Securities and Exchange Commission. He later held top jobs at the Interior Department and spent two lucrative decades in private practice with always one foot firmly planted in politics. It is a fascinating historical footnote that Fortas provided legal representation for Lyndon Johnson during LBJ’s fiercely contested first race for the U.S. Senate in Texas in 1948. Ever politician, I’d guess, feels beholden to the lawyer who helped secure their election victory. Not everyone has a chance to put that lawyer on the Supreme Court.

Fortas finally sealed his political and judicial fate when it was revealed after his nomination to be Chief Justice that he had an ethically questionable relationship with financial benefactors. He also did something unthinkable for a judge today – he actually sat in on White House staff meetings.

The New York Times reported recently that Thomas, not unlike Fortas years ago, maintains what the paper called “an ethically sensitive relationship” with Dallas real estate developer and GOP fundraiser Harlan Crow. Thomas declines to talk about the relationship or his wife’s work for Tea Party-oriented groups and causes, including groups determined to overturn the health care law. Toobin does quote the Virginia Attorney General leading the charge against the Affordable Care Act as expressing supreme confidence that he’ll have Justice Thomas’ vote when the case gets to the Supremes.

This much is true: no one gets to the United States Supreme Court without political connections and a certain political orientation. It is the way our system works and once on the Court the temptation to put in place through the law one’s own political philosophy must, at times, be overwhelming. But, tempting or not, that’s not the job of a judge. You want to make the law, run for Congress.

At the same time, judges are only able to maintain a certain level of public trust and confidence if they conduct themselves, in public and private, in such a way as to be nearly as pure as Caesar’s wife. Abe Fortas failed the test in 1968. Clarence Thomas is close in 2011.

Ironically, both Thomas and Fortas graduated from Yale Law School, a fact that Thomas now considers one of his great mistakes in life. He tells associates, according to Jeffrey Toobin, that when it comes to speaking at law schools, “he doesn’t do Ivies,” which he considers the unhealthy domain of the nation’s “elites.” Thomas even refuses to sit for a portrait that his law school could display in its hall of fame.

I did notice in perusing this fall’s course offerings at Yale Law that among all the classes on torts, contracts and the Constitution is something called the Ethics Bureau at Yale. The Bureau helps provide practical experience for law students who in turn help clients who can’t afford to pay. In part, the course description reads: “Impecunious clients and the lawyers who serve them are in need of ethics counseling and legal opinions on a regular basis.”

Apparently some judges who are not “impecunious” also need “ethics counseling” on a regular basis. And that Yale course, it should be noted, has no prerequisite.

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