Supreme Chutzpah

From The New York Times:

[Supreme Court Justice Clarence Thomas and Dallas real estate magnate and a major contributor to conservative causes, Harlan Crow] met in the mid-1990s, a few years after Justice Thomas joined the court. Since then, Mr. Crow has done many favors for the justice and his wife, Virginia, helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for Ms. Thomas to start a Tea Party-related group. They have also spent time together at gatherings of prominent Republicans and businesspeople at Mr. Crow’s Adirondacks estate and his camp in East Texas. In several instances, news reports of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics.

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But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges.

Although the Supreme Court is not bound by the code, justices have said they adhere to it. Legal ethicists differed on whether Justice Thomas’s dealings with Mr. Crow pose a problem under the code. But they agreed that one facet of the relationship was both unusual and important in weighing any ethical implications: Justice Thomas’s role in Mr. Crow’s donation for the museum.

The code says judges “should not personally participate” in raising money for charitable endeavors, out of concern that donors might feel pressured to give or entitled to favorable treatment from the judge. In addition, judges are not even supposed to know who donates to projects honoring them.

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Justice Thomas, through a Supreme Court spokeswoman, declined to respond to a detailed set of questions submitted by The New York Times. Mr. Crow also would not comment.

Supreme Court ethics have been under increasing scrutiny, largely because of the activities of Justice Thomas and Ms. Thomas, whose group, Liberty Central, opposed President Obama’s health care overhaul — an issue likely to wind up before the court.

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In January, the liberal advocacy organization Common Cause asked the Justice Department to investigate whether Justices Thomas and Antonin Scalia should have recused themselves from last year’s Citizens United campaign finance case because they had attended a political retreat organized by the billionaire Koch brothers, who support groups that stood to benefit from the court’s decision.

A month later, more than 100 law professors asked Congress to extend to Supreme Court justices the ethics code that applies to other federal judges, and a bill addressing the issue was introduced.

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Justice Stephen G. Breyer has attended Renaissance Weekend, a retreat for politicians, artists and media personalities that is a favorite of Democrats, including former President Bill Clinton. Justice Ruth Bader Ginsburg participated in a symposium sponsored by the National Organization for Women’s Legal Defense and Education Fund, and a philanthropic foundation once tried to give her a $100,000 achievement award. She instructed that the money be given to charity.

But in the case of Justice Thomas and his dealings with Mr. Crow, the ethical complications appear more complex.

Mr. Crow, 61, manages the real estate and investment businesses founded by his late father, Trammell Crow, once the largest landlord in the United States. The Crow family portfolio is worth hundreds of millions of dollars and includes investments in hotels, medical facilities, public equities and hedge funds.

A friend of the Bush family, Mr. Crow is a trustee of the George Bush Presidential Library Foundation and has donated close to $5 million to Republican campaigns and conservative groups. Among his contributions were $100,000 to Swift Boat Veterans for Truth, the group formed to attack the Vietnam War record of Senator John Kerry, the 2004 Democratic presidential candidate, and $500,000 to an organization that ran advertisements urging the confirmation of President George W. Bush’s nominees to the Supreme Court.

Mr. Crow has not personally been a party to Supreme Court litigation, but his companies have been involved in federal court cases, including four that went to the appellate level. And he has served on the boards of two conservative organizations involved in filing supporting briefs in cases before the Supreme Court. One of them, the American Enterprise Institute, with Mr. Crow as a trustee, gave Justice Thomas a bust of Lincoln valued at $15,000 and praised his jurisprudence at an awards gala in 2001.

The institute’s Project on Fair Representation later filed briefs in several cases, and in 2006 the project brought a lawsuit challenging federal voting rights laws, a case in which Justice Thomas filed a lone dissent, embracing the project’s arguments.

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There are a number of reasons Justice Thomas might be thankful to Mr. Crow. In addition to giving him the Douglass Bible, valued 10 years ago at $19,000, Mr. Crow has hosted the justice aboard his private jet and his 161-foot yacht, at the exclusive Bohemian Grove retreat in California and at his grand Adirondacks summer estate called Topridge, a 105-acre spread that once belonged to Marjorie Merriweather Post, the cereal heiress.

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Beyond the admonition against fund-raising, the code generally discourages judges from partaking in any off-the-bench behavior that could create even the perception of partiality. It acknowledges the value in judges’ being engaged with their communities, lecturing on the law and doing charitable work, but draws a line where those activities might cause a reasonable person to worry that a judge is indebted to or influenced by someone.

“The code of conduct is quite clear that judges are not supposed to be soliciting money for their pet projects or charities, period,” said Arn Pearson, a lawyer with Common Cause. “If any other federal judge was doing it, he could face disciplinary action.”