Supreme Court justices and donors mingle at campus visits. These documents show the ethical dilemmas

WASHINGTON — When Supreme Court Justice Clarence Thomas headlined a 2017 program at McLennan Community College in Texas, his hosts had more than a speech in mind. Working with the prominent conservative lawyer Ken Starr, school officials crafted a guest list for a dinner at the home of a wealthy Texas businessman, hoping an audience with Thomas would be a reward for school patrons — and an inducement to prospective donors.

Before Justice Elena Kagan visited the University of Colorado’s law school in 2019, one official in Boulder suggested a “larger donor to staff ratio” for a dinner with her. After Justice Sonia Sotomayor confirmed she would attend a 2017 question-and-answer session at Clemson University and a private luncheon, officials there made sure to invite $1 million-plus donors to the South Carolina college.

The Associated Press obtained tens of thousands of pages of emails and other documents that reveal the extent to which public colleges and universities have seen visits by justices as opportunities to generate donations – regularly putting justices in the room with influential donors, including some whose industries have had interests before the court.

The documents also reveal that justices spanning the court’s ideological divide have lent the prestige of their positions to partisan activity, headlining speaking events with prominent politicians, or advanced their own personal interests, such as sales of their books, through college visits.

The conduct would likely be prohibited if done by lower court federal judges. But the Supreme Court’s definition of banned fundraising is so narrow — simply an event that raises more than it costs or where guests are asked for donations — that it does not account for soliciting contributors later while reminding them of the special access they were afforded.

“The justices should be aware that people are selling access to them,” said University of Virginia law professor Amanda Frost, an ethics expert. “I don’t think they are naive, but they certainly have been putting themselves in situations where people can credibly claim, ‘I’m giving you access,’ or ‘I’m going to fundraise off my claimed closeness or access.’ And that is a problem.”

In a statement responding to questions, the Supreme Court said: “The Court routinely asks event organizers to confirm that an event at which a Justice will speak is not a fundraiser, and it provides a definition of ‘fundraiser’ in order to avoid misunderstandings.”

“The Court then follows up with event organizers to elicit further information as appropriate,” the statement said. “The Court’s practice has been useful: Justices have declined to be featured at events even though event organizers expressly told Chambers that the events were not fundraisers, following additional inquiry by the Court that confirmed them to be fundraisers.”

Still, the revelations come at a fraught moment for the court, which by constitutional design settles disputes that set fundamental boundaries in American life. The court’s integrity is being questioned because of concerns about ethics abuses by justices and polarizing court rulings, including last year’s decision overturning Roe v. Wade. A 2022 survey put trust in the court at a 50-year low, with just 18% expressing a great level of confidence.

At the heart of some of the questions now being raised about the court is the fact that it operates without a formal code of conduct, leaving justices with no “common reference point,” said retired federal Judge Jeremy Fogel, an appointee of President Bill Clinton.

“Without one, you don’t have an agreed-to set of rules and it becomes a question of, ‘Am I bothered by this?’ or ‘Is this OK with me?’” said Fogel, who led an agency within the federal judiciary tasked with educating judges on ethics matters. “That then gets refracted through a political lens and leads to questions of legitimacy. That’s a real problem.”

Lower court federal judges are generally barred from engaging in fundraising, political activity and “lending the prestige of judicial office” to advance a judge’s own “private interests.”

But Supreme Court justices are asked only to adhere to what Chief Justice John Roberts, in a statement signed by all nine members of the court, referred to in April as a set of “ethics principles and practices.” The justices provide only a limited accounting of expenses-paid travel and sometimes neglect to disclose events altogether.

The court has long benefited from the presumption that the justices, who this year were paid $285,400 — Roberts earned more — have chosen public service over far more lucrative opportunities.

But that perception has started to crack after reporting this year by news media exposed ethical lapses, including investigations by ProPublica showing that Thomas repeatedly accepted luxury vacations — including a $500,000 trip to Indonesia in 2019 from Harlan Crow, a billionaire businessman, Republican donor and longtime friend.

The scrutiny has spurred calls for an ethics code and greater transparency for justices’ travel. To fill in some of the information gaps, the AP used more than 100 public records requests to obtain details including identities of donors and politicians invited to private receptions as well as about perks for trips portrayed as academic.

Beyond public institutions, the AP also contacted more than 100 private schools, organizations and charities where the justices spoke, but those institutions are not subject to public records laws and most declined to provide details.

At least one justice, Sotomayor, seemed keenly aware of the peril of being in a setting with donors. Early in her Supreme Court tenure, she rejected a suggestion that she dine with major contributors to the University of Hawaii during a 2012 visit.

“No, the Justice will not do a private dinner at a ‘club’ with Mr. Boas who is a donor of the Law School,” an aide wrote to school officials, referring to Frank Boas, a longtime benefactor.

“Canon 2(B) of the Code of Conduct for U.S. Judges provides that a judge ‘should avoid lending the prestige of judicial office to advance the private interests of the judge or others,’” the aide added. “The Justice is fastidious about following this guideline.”

Before Sotomayor’s 2017 visit to Clemson, her staff advised a preference against donors at a luncheon. But the invitation list nonetheless included guests who had given millions of dollars to the school — some of them posed for photos with the justice — and internal discussions in emails show officials viewed the visit as an opportunity to generate money for a university humanities board. That again shows the ways in which the court’s narrow definition of fundraising has allowed the justices to be used to spur donations.

“We’re hoping the visibility of this visit will drive awareness,” Donna Dant, a senior development director, wrote a Clemson alumni relations official. “And ultimately, generate resources.”

Asked about the event, Clemson spokesman Joe Galbraith told the AP in a statement that it was not a fundraiser and that there were no “solicitations of donations requested in association with the visit.”

Among the justices who are in demand, Thomas is very popular with conservatives. Officials at McLennan Community College saw him as having special appeal to a certain class of donors.

“I had a few other thoughts about people who might be appropriate to invite to the Clarence Thomas dinner, mainly because they are wealthy conservative Catholics who would align with Clarence Thomas and who have not previously given,” Kim Patterson, the executive director of the McLennan Community College Foundation, wrote in an email.

In September 2017, Thomas visited Waco, Texas, to be interviewed by Starr, a longtime friend and a former independent counsel whose investigation of Clinton’s sexual misconduct made him a household name in the 1990s.

Some school faculty were skeptical of the invitation, but plans moved forward, with the school scheduling a public interview, a book signing and two private dinners.

Starr’s widow, Alice, defended the practice on the grounds that requests for donations were separate from the visit, though wealthy targets of the university’s fundraising efforts were invited.

“It is not giving to the Clarence Thomas event,” she said in a recent interview. “It is giving to the college at a later date because they were treated with courtesy and (invited) to a very special event. Every single college in America does that. And if they don’t, they are not fundraising.”

“‘Friendraising’ is what it’s called,” she added. “And then you do the big ask hopefully later.”