The Volokh Conspiracy

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Justice Thomas Long Ago Explained His Perspective On Disclosure Laws


Another day, another report on Justice Thomas. Today, ProPublica revealed that Harlan Crow paid the private-school tuition of Mark Martin, Justice Thomas's grand-nephew. And Thomas failed to disclose those payments. 5 U.S.C. § 13101(2) only requires disclosures for a gift to a "son, daughter, stepson or stepdaughter." Justice Thomas was not required to disclose any gifts concerning his grand nephew–even assuming the payments were gifts. ProPublica acknowledges this statute halfway through the story:

Justices also must report many gifts to their spouses and dependent children. The law's definition of dependent child is narrow, however, and likely would not apply to Martin since Thomas was his legal guardian, not his parent. The best case for not disclosing Crow's tuition payments would be to argue the gifts were to Martin, not Thomas, experts said.

But then ProPublica turns to the regular stable of experts. They say that in fact, these tuition payments were actually gifts to Thomas personally, which he had to disclose. And even if Thomas followed the statute, and was not required to disclose the payments, more disclosure is better.

Mark Paoletta, a close confidant of the Thomases, provides the background of the tuition payments:

Harlan Crow's tuition payments made directly to these schools on behalf of Justice Thomas's great nephew did not constitute a reportable gift. Justice Thomas was not required to disclose the tuition payments made directly to Randolph Macon and the Georgia school on behalf of his great nephew because the definition of a "dependent child" under the Ethics in Government Act (5 U.S.C. 13101 (2)) does not include a "great nephew." It is limited to a "son, daughter, stepson or stepdaughter." Justice Thomas never asked Harlan Crow to pay for his great nephew's tuition. And neither Harlan Crow, nor his company, had any business before the Supreme Court.

Still, it seems that in 2002, Thomas disclosed a gift of $5,000 that was used to defray Martin's education. That money was placed in a trust for Martin's benefit. And there is some other evidence that Thomas is inconsistent with regard to his disclosures. For example, Thomas initially disclosed some travel with Crow, but stopped after the Los Angeles Times reported on it.

I think we can draw a general sense of how Justice Thomas approaches ethics rules: Justice Thomas discloses what he is required to disclose, but declines to disclose optional information that would allow critics to attack him, his family, and his friends. Thomas's apparent goal is not to shield any actual or apparent conflicts of interest. Despite the media's best efforts, there have been no reports that Crow transacted actual business before the Supreme Court. His goal seems to be to protect his privacy from critics that have been trying to destroy him for more three decades.

Consider Justice Thomas's concurrences from Citizens United and Doe v. Reed in this light. He intrinsically views disclosure laws as difficult to justify–whatever benefit disclosure provides are vastly outweighed by the intrusion into people's private spheres. In both cases, Thomas focused on the attempts to expose those who supported Prop 8 (the term "dox" did not exist at the time). In Thomas's view, disclosure enables retaliation for constitutionally-protected activity. He wrote in Citizens United:

Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.

And in Doe v. Reed:

So too does the strength of a signer's First Amendment interest. The First Amendment rights at issue here are associational rights, and a long, unbroken line of this Court's precedents holds that privacy of association is protected under the First Amendment. The loss of associational privacy that comes with disclosing referendum petitions to the general public under the PRA constitutes the same harm as to each signer of each referendum, regardless of the topic

I suspect Thomas believes these principles, quite personally, and they affect how he chooses to complete his disclosure forms. Every disclosure Thomas makes about Crow, and others, will invariably lead to more attacks on Thomas, and those friends. Thomas has no interest in going above-and-beyond to give his critics further ammunition. Thomas hews to the letter of the law, but does not provide more.