The Senate Judiciary Committee is moving to subpoena Clarence Thomas's Republican donors after complaining of an ethics crisis in the Supreme Court.
The committee said that some Supreme Court justices have been "joining billionaires with business before the Court on their private planes and yachts or receiving gifts such as private school tuition for a family member."
Senate Judiciary Committee Chairman Dick Durbin said the committee would vote on issuing subpoenas after the "intransigence" the donors have shown in refusing to come before the committee to explain their relationship with Thomas, the longest-serving member of the Supreme Court.
The donors include Texas real-estate billionaire Harlan Crow; Leonard Leo, a former aide to the Trump presidency; and Robin Arkley II, who allegedly gave trips to Justice Samuel A. Alito Jr. and the late Justice Antonin Scalia.
The committee includes 11 Democrats and 10 Republicans, so Democrats are likely to succeed in issuing subpoenas.
In September, Thomas said that he took three trips last year aboard Crow's private plane. He did not acknowledge any earlier travel at Crow's expense, including a 2019 trip in Indonesia aboard his yacht.
Thomas has said in a statement: "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."
A representative for Crow told Newsweek via email that any such subpoena would be "nothing more than a stunt aimed at undermining Justice Thomas, but his office would "remain committed to respectful cooperation and a fair resolution."
"It's disappointing that one party on the Committee would choose to pursue an unnecessary, partisan, and politically motivated subpoena instead of simply reciprocating Mr. Crow's good faith efforts at a reasonable compromise that respects both sides, the spokesperson said.
"We offered extensive information responsive to the Committee's requests despite the serious constitutional and privacy concerns presented to the Committee, which were ignored and remain unaddressed.
"Notably, the Committee has already passed the legislation for which it says the information it has requested is supposedly necessary."
Durbin and Senator Sheldon Whitehouse, Chair of the Senate Judiciary Subcommittee on Federal Courts, said in a statement that "the Supreme Court is in an ethical crisis of its own making," while accusing Leo and Arkley of "outright defiance" in refusing to respond to the committee's queries.
The committee accused Supreme Court justices of accepting "lavish, undisclosed gifts" that have "enabled their wealthy benefactors and other individuals with business before the Court to gain private access to the justices while preventing public scrutiny of this conduct."
Durbin and Whitehouse said that they had unsuccessfully sent separate inquiries to Crow and the three holding companies that own his private jet, yacht, and 105-acre estate, Topridge Camp, in upstate New York. Thomas was a frequent guest at the property.
"In order to adequately address this crisis, it is imperative that we understand the full extent of how people with interests before the Court are able to use undisclosed gifts to gain private access to the justices," Durbin and Whitehouse said in their statement.
The inquiries the Committee has sent to Crow, Leo, and Arkley "are critical to this work," Durbin and Whitehouse added.
"However, they have either refused to comply or offered to produce certain limited information that fell well short of what the Committee needs and to which it is entitled.
"Due to Crow, Leo, and Arkley's intransigence, the Committee is now forced to seek compulsory process to obtain the information they hold. Therefore, Chair Durbin will be asking the Committee to grant him authorization to issue subpoenas to these individuals."
Durbin and Whitehouse said the Supreme Court Chief Justice John Roberts could fix the problem by adopting a binding code of conduct. "As long as he refuses to act, the Judiciary Committee will," the pair said.
The subpoenas are part of the committee's aim to create new ethics rules for the Supreme Court.
In July, the Senate Judiciary Committee moved the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act to the full Senate. The bill would require Supreme Court Justices to adopt a code of conduct; create a mechanism to investigate alleged code violations; improve disclosure; and require justices to explain when they recuse themselves from a Supreme Court case.
Durbin and Whitehouse said they have been urging for a code of conduct for more than 11 years.
The pair said that Leo's and Arkley's responses to the Committee's initial July 11, 2023, requests were "blanket refusals to comply". Neither individual engaged in any private discussions with the Committee. "The Committee reiterated its requests to both Leonard Leo and Robin Arkley on October 5, noting that they had identified no proper basis to withhold information from Congress. Both repeated their refusals to cooperate," Durbin and Whitehouse said.
Crow's "proposal to provide the Committee with responses to only a small subset of its requests, and only for the past five years, is wholly inadequate. Additionally, tying this insufficient response to an agreement that the Committee would pursue no further inquiries regarding Crow's relationship with Justice Thomas would inappropriately and prospectively undermine the Committee's constitutional oversight authority," Durbin and Whitehouse added.
The subpoenas would be bad news for Clarence, who is under increasing pressure to explain his relationship with Republican donors.
In September, the ProPublica investigative website revealed that not only has Crow been hosting Justice Thomas at the private Bohemian Grove club over the last 25 years, but billionaire brothers Charles and David Koch also stayed there with Justice Thomas. The Koch brothers have been funding a Supreme Court challenge to overturn the Environmental Protection Agency's ability to enforce environmental law without judicial oversight.
Newsweek has sought email comment from Justice Thomas's office, Leonard Leo and Robin Arkley II.
Update: 11/1/23, 5:22 p.m. ET: this article has been updated with a response from Harlan Crow.
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Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more
