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By Jamelle Bouie
The law is a little different for those at the top.
As the world now knows, Justice Clarence Thomas did not disclose a real estate deal he and his family made in 2014 with Harlan Crow, a billionaire Republican donor. Thomas and several other relatives sold his mother’s home in Savannah, Ga., along with two vacant lots, for $133,363 to a company owned by Crow.
“Soon after the sale was completed,” according to ProPublica, “contractors began work on tens of thousands of dollars of improvements.”
Thomas’s mother, Leola Williams, 94, still lives in the house. Neither she nor the justice appears to pay rent.
There is some dispute over whether Thomas actually violated federal disclosure laws by accepting gifts from Crow — as ProPublica also revealed — without reporting them to the government. Thomas’s legal obligations on this real estate transaction are a little more straightforward. Under the Ethics in Government Act of 1978, passed in the wake of Watergate, federal officials, including members of the federal judiciary, are required to disclose most real estate transactions totaling more than $1,000.
Clarence Thomas, in other words, may have broken the law.
If so, then penalties for either falsifying or “knowingly or willfully” failing to file or report required information include fines of as much as $71,316 per omission and, potentially, a criminal referral. In 2015, for example, as CNN reported, “a financial administrator for the Federal Bureau of Prisons was given three years probation and paid a $5,000 fine for failing to disclose a business relationship he had with a federal contractor that was competing to provide inmate health care services.”
The idea that Thomas will face any penalty, much less an official investigation by the Supreme Court, is obviously wish-casting. The politics of the court, the lack of any internal check on the court’s members and the general unwillingness of Congress to challenge the court’s power — or even scrutinize its affairs — mean Thomas can act with relative impunity.
And even if he couldn’t, even if there were meaningful and politically feasible consequences for misconduct among members of the Supreme Court — impeachment is practically a dead letter — there’s the fact that the law is simply more forgiving of the rich and the powerful.
If Thomas were an ordinary federal employee — or even an ordinary federal judge — he would probably have to answer to authorities for his failure to disclose income from a real estate sale for nearly a decade. As it stands, it is apparently enough for him to amend the form in question, as he did in 2011 after he failed to report the more than $686,000 his wife, Ginni Thomas, earned from the Heritage Foundation between 2003 and 2007. When asked to report his spouse’s income, Thomas had checked the box labeled “none.” (Thomas has in fact let it be known that he intends to amend his disclosure forms to account for the 2014 real estate transaction.)
It is apparently no harm and no foul for a justice of the Supreme Court to show willful and repeated indifference to disclosure requirements under the law.
Here, it’s worth saying that Justice Thomas is notoriously unforgiving of criminal defendants who make procedural mistakes. In a 2022 opinion for the court, he narrowed the scope of appeals for state prisoners — including those on death row — who believe they received inadequate legal representation. Thomas says those prisoners can no longer present new evidence to support their claim.
The issue is that most claims of poor assistance involve new evidence. Too bad, says Thomas. If it wasn’t presented at the appropriate point in the process, then it doesn’t count. The Constitution as interpreted by Clarence Thomas doesn’t allow prisoners to amend the form.
To move away from the Supreme Court for a moment, we can see this pattern of leniency for some and the stiff arm of the law for everyone else, wherever we choose to look in American society. Take the workplace. A 2017 study by the Economic Policy Institute found that in the 10 most populous states, an estimated 2.4 million people lose a combined $8 billion income to unscrupulous employers. If this is representative of national trends, the institute contends, then American workers lose more than $15 billion a year to wage theft. For comparison’s sake, the total losses attributed to all property crime in 2018 amounted to $16.4 billion.
If you are a regular person and you shoplift from Walgreens, you might be arrested. The law doesn’t usually let you make restitution or return the item you stole. If you are Walgreens, on the other hand, and you take millions of dollars worth of wages from your employees, then you can just pay them back — provided the victims bring a class-action lawsuit, as a group of Walgreens workers in California did in 2018. Walgreens settled with them in 2020.
For years, only the unluckiest of the wealthy faced trouble for tax evasion. The Internal Revenue Service just didn’t have enough money or manpower to force the rich to pay their bills to the government (which is why the Biden administration requested, and received, $80 billion in new I.R.S. funding through the Inflation Reduction Act). In 2018, the I.R.S. audited the top 1 percent of taxpayers at a rate, 1.56 percent, that was only slightly higher than the rate at which it audited Americans who received the earned-income tax credit.
Because there are far more people who earn $16,000 a year — in 2019, this was roughly the highest income an unmarried adult could earn and still receive the credit — than there are people who earn $1.6 million a year, this meant the I.R.S. spent more time scrutinizing the finances of working people who may have misreported a few hundred dollars than it did a wealthy investor who tried to hide a few hundred thousand.
Of course, no account of our legal double standards would be complete without the example of President Donald Trump, who spent his career in real estate skirting the law and made a show of his lawlessness while in office. It’s only now, more than two years after he left the White House, that he is in any danger of criminal prosecution and legal accountability. And so far, it’s for falsifying business records and not any of his more egregious offenses.
This is all to say that the United States is a nation of laws, and not men, if you are an ordinary citizen. However, with a little money and a little power — or at least a seat on the Supreme Court — the law becomes less of a directive and more of a suggestion.
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