Justice Abe Fortas Resigned From Supreme Court, Clarence Thomas Won’t

  • Supreme Court Justice Abe Fortas resigned in 1969 over accusations of financial misconduct.
  • Courts experts told Insider Justice Clarence Thomas’ alleged misconduct appears far worse.
  • But unlike Fortas, Thomas is unlikely to experience severe consequences in the post-Trump era.

The controversy surrounding Supreme Court Justice Clarence Thomas has prompted comparisons to Abe Fortas — the only Supreme Court justice to ever resign from the high court.

But the fact that Thomas is highly unlikely to experience a similar fate highlights how politics has changed post-Trump.

During 11 days of uncertainty in May 1969, President Richard Nixon worked hard to secure Fortas’ removal from the court, ultimately resulting in the liberal justice’s resignation over allegations of financial impropriety. Fortas was ousted after accepting a $20,000 consulting fee from the family foundation of a financier and former client who was later indicted for securities fraud.

The justice returned the fee that same year; however, news of the past payment effectively sunk his career.

But what Fortas did was perhaps less scandalous than Thomas’ alleged misdeeds, three courts experts told Insider. 

“I think Abe Fortas is spinning in his grave because this sounds so much worse,” Laura Kalman, a professor of political and legal history at the University of California Santa Barbara and the author of “Abe Fortas: A Biography,” said of Thomas’ alleged ethics violations.

At the time Fortas found himself caught up in the scandal, accepting such fees was common practice among Supreme Court justices, according to Kalman, but the financier’s eventual conviction spurred a Life magazine exposé detailing the tangled financial relationship and previous friendship between Fortas and the convicted stock manipulator, prompting calls for his resignation. 

Nixon, who soon realized the scandal could offer him the chance to appoint a new, more conservative justice to the court, pushed hard for the liberal justice’s resignation, leaking information to reporters and threatening investigations into Fortas’ wife and former law partners, according to Kalman.

Fortas defended his conduct as he left and insisted he did nothing improper. But he ultimately stepped down, he said, to protect the integrity of the court. 

“When you see what Justice Fortas did in comparison” to what Thomas is accused of, “it really pales,” Doron Kalir, a professor at Cleveland-Marshall College of Law and an expert in legal ethics, told Insider.

Like Fortas, Thomas has been accused of financial misconduct. ProPublica first reported earlier this month that Thomas has been accepting luxury vacations from GOP mega-donor Harlan Crow for years. Days later the outlet revealed Thomas sold his childhood home to Crow in 2014, and that the justice’s mom still lives in it. The justice never disclosed the trips or the sale of the home.

Thomas did not respond to Insider’s request for comment.

Fortas resigned, but the chances of Thomas doing so are close to zero

“The most distinct difference between what happened then and what happens now is that people on both sides of Congress demanded that he retire from the court,” Kalir said of Fortas. “And that included Democrats.”

Democratic lawmakers have called for an investigation into Thomas, and the Senate Judiciary Committee has said it will hold a hearing on Supreme Court ethics. But not a single Congressional Republican has joined those calls. Even Utah Sen. Mitt Romney, who has shown a willingness to be critical of fellow conservatives, simply said: “If the reports are accurate, it stinks.”

Some Democrats have even called for Thomas to resign, but experts agree there’s essentially zero chance of that happening. Impeachment, the other option for removing Thomas from the bench, may be even less likely, thanks to a Republican-controlled House and a desire to maintain the court’s 6-3 conservative supermajority.

But partisanship, while certainly higher now than in Fortas’s day, is only part of the reason Thomas is unlikely to experience any significant consequences.

Another potent force at play is what Kalir called the “Trump effect,” referring to the way former President Donald Trump blatantly and openly disregarded even the most basic standards of conduct and got away with it. One of the most obvious examples of this was the “Access Hollywood” tape, in which Trump was captured talking about groping women in lewd terms. The tape, which under usual circumstances would’ve been thought of as a campaign-killer, was released publicly one month before the 2016 election. Trump apologized, but also dismissed the comments as “locker room talk,” and was still elected president.

He went on to be impeached twice by the Democratic-controlled House for abuse of power over withholding aid to Ukraine and pressuring President Volodymyr Zelenskyy to investigate the Bidens, as well as for his role in the January 6, 2021, insurrection. Through both impeachments, the vast majority of the Republican party stood by him.

That immunity to scandal has now extended beyond elected officials and has now reached the judiciary, according to Kalir. “The Trump effect has poisoned every aspect of our public life,” he said.

He noted that Thomas’s questionable conduct precedes the latest revelations about his finances, and also includes the conservative activism of his wife, Ginni Thomas, and her efforts to overturn the 2020 election.

But Kalir also pointed to questionable conduct by Judge Matthew Kacsmaryk of the Northern District of Texas, the Trump appointee who earlier this month issued a ruling that could limit access to abortion pillsThe Washington Post reported this week that when Kacsmaryk was being considered for a federal judgeship in 2017, he failed to disclose a journal article he had submitted that contained controversial statements on transgender people and abortion rights. As part of the judicial nominations process, prospective judges are required to provide published work they have written or edited. 

Kalir said that while the vast majority of federal judges still follow traditional ethics standards and uphold the code of conduct that is required of them, court watchdogs in recent years have gotten “totally fearful” of a decline in the norms that are typically expected of a federal judge.

As a result, the public’s trust in the Supreme Court is likely to decline even further, he said, adding he believes Thomas’s conduct will have a “damaging effect” that will last years.

“He will forever be remembered as the second Abe Fortas,” Kalir said. “Except that he did not resign.”

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