What is Going on with SCOTUS?
What is Going on with SCOTUS?
A quick explainer to cut through the noise.
Happy CINCO DE MAYO to all who celebrate, which honestly should be everyone. As the saying goes, “You have to be true to yourself because you cannot make everyone happy; you are not tacos or Steely Dan.”
I’m sure just before you started Googling “Steely Dan” you were probably wondering about the headline. I know there has been bigger news over the past few weeks, like Tucker Carlson being yeeted out of the Fox News corporate office, but honestly there isn’t all that much to be said about why it happened until we get more reporting. I’m sure that will happen over the next few weeks, and I have assembled all the stuff I read about it under Should-Reads. But I was most interested in the various stories about the Supreme Court this week.
Really? SCOTUS?
I think the most honest way to write something like the Jackal isn’t always to focus on what’s flashy, but on what’s important. What’s happening with SCOTUS is, undeniably, something we have really never seen with the Court (and a lot of that is due to some really stellar reporting), so let’s focus on the two(ish) big stories as of late:
The ethical issues surrounding Justice Neil Gorsuch’s sale of his mountain home to a person who has business before the Court.
Justice Clarance Thomas spending a lot of time and money with GOP mega-donor Harlan Crow.
I want to start with Justice Gorsuch because his issues provide a launching point into everything else. On April 25, 2023, Politico reported on a real estate deal between Gorsuch and Brian Duffy, the head of Greenberg Traurig, one of the country’s biggest law firms. Supreme Court Justices - like a lot of other government employees in positions of power - report income from various sources in order to be candid about any possible conflict of interest (“disclosure forms.”) What makes Gorsuch’s real estate transaction a story is that he did not disclose Mr. Duffy as the buyer on his disclosure form, and what makes it a story is that Duffy had a lot of business before the Supreme Court. Here is Politico:
For nearly two years beginning in 2015, Supreme Court Justice Neil Gorsuch sought a buyer for a 40-acre tract of property he co-owned in rural Granby, Colorado.
Nine days after he was confirmed by the Senate for a lifetime appointment on the Supreme Court, the then-circuit court judge got one: The chief executive of Greenberg Traurig, one of the nation’s biggest law firms with a robust practice before the high court. Gorsuch owned the property with two other individuals.
On April 16 of 2017, Greenberg’s Brian Duffy put under contract the 3,000-square foot log home on the Colorado River and nestled in the mountains northwest of Denver, according to real estate records.
He and his wife closed on the house a month later, paying $1.825 million, according to a deed in the county’s record system. Gorsuch, who held a 20 percent stake, reported making between $250,001 and $500,000 from the sale on his federal disclosure forms.
Gorsuch did not disclose the identity of the purchaser. That box was left blank.
Since then, Greenberg Traurig has been involved in at least 22 cases before or presented to the court, according to a POLITICO review of the court’s docket.
On its face, you have to say it sounds sketchy. And I want to focus on this sale for several reasons:
I live in Colorado (and have even stayed in Granby).
I have purchased property here, twice.
I have an LLC (that becomes relevant later).
I know legal stuff.
All that said, it is important to say up front that from a nominal/facial/surface-level standpoint, Gorsuch has done nothing wrong or unethical. The sale of the property and his reporting of it is on the up and up; the weakness here stems from the Supreme Court’s disclosure forms.
Let me explain. Here is Gorsuch’s disclosure form, which I will provide a link to in case you think the stupid way it looks is due to me fudging it instead of Apple hating me personally:
On his disclosure form, Gorsuch actually does provide the detail needed about the sale of his home to Duffy. This is the way the transaction went:
Gorsuch owned the property with a few other people.
In order to facilitate the sale of his property, he formed a Limited Liability Company (LLC) called the Walden Group.
On his disclosure form, Gorsuch listed that the Walden Group sold that property for between $250,001 and $500,000 (see code “N” on the form).
He lists that the LLC closed its sale on December 31, 2017.
Gorsuch’s disclosure form reflects what actually happened. In short, Gorsuch owned a home that was sold for $1.8 million to Mr. Duffy, but he owned it with a few other people. Those people facilitated that sale through an LLC, which is not at all unusual in real estate transactions. LLCs are often created to deal with super complicated transactions (as well as provide a tax benefit), and then they break up after the transactions are over. That’s exactly what happened here.
After the sale was completed, the Walden Group LLC dissolved and Gorsuch received his cut of its profits. So, from a nominal standpoint, Gorsuch did not do any direct business with Mr. Duffy. An LLC (of which he was a member) did business with Mr. Duffy, and Gorsuch listed that LLC’s activity on his disclosure form.
Gorsuch’s disclosure form contains no errors. He listed exactly what happened. He was party to an LLC that owned a piece of property; that LLC dissolved on the date he said it did; and he was paid for the amount he listed.
With all of that out of the way, attempts to downplay this as anything less than sus (Gen Z lingo alert) are kind of annoying. Some of the defenses of Gorsuch’s conduct have been that Duffy donated heavily to Democrats. That is true, but he also donated to John McCain. Another defense is that Gorsuch had this property listed for years and it didn’t sell until after he became a Supreme Court justice. But that actually makes it worse: If you had a property that was up for sale for a long time, suffering multiple price reductions, wouldn’t you want someone to take it off your hands? And Duffy sweeps in right after Gorsuch becomes a Supreme Court justice? That is some pretty good fortune.
Another defense is that Gorsuch and Duffy didn’t know each other, to which I can only respond, please. I live in Colorado, and I can tell you that the legal circle here is gossipy and small; there is no plausible way that Duffy was completely ignorant to the fact that a Supreme Court justice owned the land he was about to purchase. Moreover, Granby (at the time) was somewhat of an overlooked gem in Colorado real estate, which was in the middle of a major explosion. This state is an incredibly expensive place to live in general, but that quaint notion increases exponentially once you start venturing into the mountains.
But Granby was a major destination for investors because it is close to a huge ski spot (Winter Park) and the real estate was cheaper than some of the other mountain towns. Here is a look at what the Zillow looks like for Granby now, in the middle of a market slowdown:
In 2017, I can only imagine that this had an infinite number of red dots. Needless to say, the idea that Duffy picked Gorsuch’s property out of a hat is incredibly hard to believe.
Does that mean Gorush is corrupt, or that he will issue decisions in Duffy’s favor every time he has business before the Supreme Court? Of course not. The problem here isn’t with Gorsuch, but on the Supreme Court’s disclosure forms.
Gorsuch did everything he was supposed to do. Even if you read the Politico piece, it quotes legal experts talking about what disclosure forms “should” require, but it never says anywhere that Gorsuch broke any laws or violated any rules. It comes down to how much you want Gorsuch to actually reveal on his disclosure forms, and whether or not he should run everything by his accountant. But that is really what’s at issue here. If the Supreme Court has the final say over what is constitutional and what isn’t, “who watches the Watchmen?” In order to maintain the highest confidence in the Court, we have to be sure that the justices aren’t being bought off. That takes us to Clarence Thomas.
Please say something about Clarence Thomas, because if you show me another chart of Neil Gorsuch’s financial records I will shit a chicken.
Last month ProPublica broke a major story about justice Clarence Thomas, which detailed his relationship with GOP megadonor Harlan Crow. Their original story explained how Crow let Thomas use his private jet, took him on lavish vacations, and let him sail on his yacht.
None of this was publicly known until ProPublica’s piece. A few weeks after that, another bombshell dropped: Crow also paid for a house that Thomas’s mother lived in. Here is ProPublica:
The transaction marks the first known instance of money flowing from the Republican megadonor to the Supreme Court justice. The Crow company bought the properties for $133,363 from three co-owners — Thomas, his mother and the family of Thomas’ late brother, according to a state tax document and a deed dated Oct. 15, 2014, filed at the Chatham County courthouse.
The purchase put Crow in an unusual position: He now owned the house where the justice’s elderly mother was living. Soon after the sale was completed, contractors began work on tens of thousands of dollars of improvements on the two-bedroom, one-bathroom home, which looks out onto a patch of orange trees. The renovations included a carport, a repaired roof and a new fence and gates, according to city permit records and blueprints.
All of this looks bad, but things started to look markedly worse on Thursday, after ProPublica came out with their latest: Crow also paid the private school tuition of Thomas’s nephew, whom Thomas had (admirably) taken in to his home. The valuation of this “gift” was somewhere in the range of $150,000.
If you paid attention to the first section of this Jackal, I don’t have to tell you what comes next: Thomas failed to disclose any of this on his forms. What’s worse (and arguably the worst part of this) is that Thomas did disclose other tuition payments he received on his disclosure forms, and kept Crow’s a secret. That is extremely bad, no matter how you look at it.
And when it rains, it pours; the Washington Post reported today that a different GOP donor, Leonard Leo, was paying Thomas’s wife, Ginni, somewhere in the realm of “tens of thousands of dollars” in consulting fees, but kept her name off the paperwork. Here is the Post:
The arrangement reveals that Leo, a longtime Federalist Society leader and friend of the Thomases, has functioned not only as an ideological ally of Clarence Thomas’s but also has worked to provide financial remuneration to his family. And it shows Leo arranging for the money to be drawn from a nonprofit that soon would have an interest before the court.
The latest story about Thomas is another bombshell, but it becomes one not because of the actual content of the story but because of the frequency in which the story’s contents happened. Crow regularly poured out lavish gifts upon Justice Thomas and his family, and there is no real explanation for it. Ginni Thomas was on the books of a major judicial activist group, and it was purposefully kept secret. We have no real, credible defense for any of the behavior.
The most we got was a statement from a month ago, in which Thomas said he would update his disclosure forms. But how he credibly corrects the latest error is beyond me by an order of magnitude. Wrap your head around this: Around the time Crow was paying Thomas’s nephew’s tuition, Clarence and his wife, Ginni, were pulling in somewhere around $500,000 a year (including money from Leonard Leo). Is there any real argument that they couldn’t afford the tuition on their own?
This tweet really hit me:
Seriously, why does any of this matter?
I think there have been a number of defenses of Thomas’s conduct, ranging from the laughable to the convincing, so I’ll start with the laughable:
The Daily Wire published a piece saying that Sonia Sotomayor failed to recuse herself from a case that involved her book publisher.
Clearly they are attempting to run defense for Gorsuch and Thomas. This is obvious because Gorsuch used the same publishing company as Sotomayor, had a book published around the same time, and (similarly) failed to recuse himself. It is also worth noting that the defendant in that case did not ask Sotomayor to recuse (though that would not absolve her of her duty to do so). In addition, Court Reform Activists™ said that Sotomayor should have recused at the time and are currently criticizing Thomas as well.
Harlan Crow had no real business before the Supreme Court.
This is true, and worth noting, but it doesn’t make things any better for Thomas. It is pretty easy to argue that Crow’s interests are aligned with right-wing political causes, and those causes end up in front of the Supreme Court.
All of this is a coordinated political hit-job meant to delegitimize the Supreme Court.
I will grant conservatives this: It is pretty weird that we have seen a flurry of cases come out in the span of a month. However, I think ProPublica’s reporting has been rock solid and also evidence of what good reporting produces: Since their original piece, other sources have come forward and provided additional information. That said (and all credit due to the reporters who broke these stories), it is true that some people on the Left have an incentive to delegitimize the Court in the hopes that some decisions will be ignored, and you do not have to be a conspiracy theorist to think it’s suspicious that everything is hitting at once.
That last point is key. The Supreme Court gets a lot of its power from the Constitution, but that power is vested upon them by our understanding of the Constitutional order. Judicial review is a concept that is worth reading up on, but AOC’s recent argument about its relevance is not completely off base. The Supreme Court’s decisions are universally respected because the Court itself deserves universal respect.*
*Until it doesn’t. That is the argument. And that is a peril we face when a justice is receiving gifts from a major Republican donor and is failing to disclose them to an audience that craves disclosure. Some of the people who read The Jackal have worked in public office and know that the mantra there is to refuse all free gifts, no matter how small. Even the tiniest, minuscule thing can be (mis)perceived as a bribe. None of this ever entered Thomas’s mind while he was smoking cigars with Harlan Crow (TBH I HAVE FOMO)?
So, this story is important because there is a very realistic scenario where Justice Thomas’s actions are cited as a reason to doubt the Court’s integrity. There are ways to fix this issue, which will require more oversight and (for the Lord’s sake) a complete reinvention of the disclosure forms. But until that is done, the Court’s reputation is in serious jeopardy, and I don’t know how to fix it. That isn’t partisan spin; it’s just reality.
Should-Reads:
Everything is about Tucker Carlson.
This interview with Abby Grossberg, a former Tucker Carlson producer, is illuminating.
This piece on how Fox News gambled with Tucker is amazing.
This piece set off a lot of discussion today and generated a lot of criticism, but I think it is a great read.
Here is what I wrote about Tucker in 2021.
I know there was no Jackal last week. One of the issues is just sheer busy-ness, but another major issue that the Jackal needs some maintenance. I’m looking to address both relatively soon and will keep everyone posted.
Great article