US Supreme Court justices, donors often visit campuses. What are the ethical dilemmas?

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.”

Brian O’Rourke, another alumni relations official, wrote: “When you say $1M donors, please be sure to include our corporate donors at that level too.” An English professor, Lee Morrissey, who helped organize the visit, commenting on the visit’s higher-than-expected costs, described it as a "‘takes money to make money’ moment.” Contacted later, he said he did not mean that literally but rather was referring to the general prospect of greater attention for the humanities' program.

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.”

One of those friends, it was hoped, would be Crow.

“May Alice and I share this with Harlan Crow? As you well know, he’ll want to connect with the Justice if at all possible,” Ken Starr, who died last year, emailed a court official. (Crow and his wife declined the invitation). Crow did not respond to requests for comment.

The roughly 100 invitees included locally prominent business people, political leaders, lawyers and donors to the school and the GOP. Guests were shuttled aboard buses to the Mediterranean-style mansion of local businessman Clifton Robinson, which boasts 26 marble columns and sweeping views of Lake Waco. They dined on crab cake bites, beef tenderloin and citrus salmon, school records show.

The school ordered enough copies of Thomas’ 2007 memoir, “My Grandfather’s Son,” for each couple, plus hundreds more for a signing after Thomas’ lecture.

At the time of the event, Robinson served on the board of directors of Hilltop Holdings, a private equity company with a pending case in federal court. Last year, the Supreme Court declined to take up the case, a favorable outcome for National Lloyds Insurance Co., a Hilltop subsidiary that Robinson started.

Robinson said he sat next to Thomas at the dinner but never discussed the case. “I was just on the board. I have no idea about that,” he said.

The day after the dinner, Thomas attended a more intimate meal with several school officials, the Starrs, Robinson, and a half-dozen other guests. The college declined to identify those people, citing guidance from the Texas attorney general’s office that allows higher education institutions to withhold donors’ names.

Thomas was far from alone in attending events where donors were invited.

As University of Colorado law school officials developed a dinner guest list before a 2019 Kagan visit, one organizer proposed a larger “donor to staff ratio” while a second said she was open to suggestions about which “VIP donors” the school “would like to cultivate relationships with.”

A university spokesperson said in a statement that there were “no solicitations” connected to the event and that no gifts were made as a result of it.

Sometimes, a trip by a justice has included both traditional lecturing and mingling with donors. In January 2020, Thomas mixed a four-day teaching assignment at the University of Florida’s law school with gatherings involving university donors and political figures.

The school arranged for its athletic association's private Embraer Phenom 300 jet to fly to Washington to ferry Thomas and his former law clerk Kathryn Mizelle, at a cost of more than $16,800. In a statement, a university spokeswoman called the chartered flight “standard practice” for many invited speakers “for whom air travel is necessary.”

Thomas and Mizelle taught a course on religion and the First Amendment and met with students. The justice also attended VIP events with school donors, according to agenda materials from the school.

Former Burger King CEO John Dasburg, a onetime university trustee, and his wife, Mary Lou, were among those included, school records show. The couple has collectively given about $600,000 to Republican candidates for federal office.

Dasburg said that they attended at the invitation of the law school dean and that he asked Thomas to sign a book on First Amendment rights and used the occasion to discuss a dissenting opinion by Thomas that he admired -– from a 2000 case upholding Colorado restrictions on protests outside abortion clinics.

Thomas and Mizelle, a 2012 graduate of the law school, extended their stay into the weekend to attend a gathering of a Florida branch of the Federalist Society, a conservative legal group whose deep-pocketed donors have helped orchestrate the Supreme Court’s shift to the right.

In a crowded ballroom at a Disney World resort, tributes for Thomas were effusive. Florida Gov. Ron DeSantis, who helped introduce Thomas and is now pursuing the Republican presidential nomination, called him the “greatest living justice.” Afterward, Thomas and DeSantis dined at a steakhouse with conservative legal activist Leonard Leo, who has helped seat multiple conservative justices on the court, according to a person familiar with the dinner. The dinner was first reported by CNN.

That September, President Donald Trump nominated Mizelle to the federal bench, despite a rating of “not qualified” from an American Bar Association committee.

In 2014, Thomas visited the University of Texas at Tyler for a lecture and dinner sponsored by a group of donors to then-Republican Rep. Louie Gohmert, who in 2020 spearheaded a lawsuit that sought to empower Vice President Mike Pence to overturn the presidential election that Trump lost to Democrat Joe Biden.

Thomas posed for photographs with guests at a private reception before a dinner sponsored by Louise Herrington Ornelas, a major school donor. Among those invited were Gohmert, local oil executives and industry lawyers, and longtime Republican Party supporters.

“Justice Thomas was a wonderful speaker and helped us just by his presence,” said Rodney Mabry, who was the school’s president at that time, in an interview. “Through the dinner, he helped raise money.”

Thomas was not alone in having a political tinge to some of his travel.

In September 2016, Sotomayor visited Colorado for a series of speeches and book events not listed on her financial disclosure, making it unclear who paid for her travel. A stop in Denver at Metropolitan State University was made at the behest of longtime friend Polly Baca, a Democratic activist, emails show.

Baca, a former Colorado state legislator and Democratic National Committee official, solicited $15,000 in contributions from nonprofit groups, philanthropists, Democratic donors, law firms and corporations to help offset the $30,000 cost.

The sponsors gained admission to a private reception with Sotomayor, where local dignitaries and school donors mingled. Baca said she did not recall raising money for the event.

There have been times when it seems that a justice gives the appearance of repaying a political favor.

Less than six months after Justice Neil Gorsuch was sworn in as Trump’s first Supreme Court nominee, thanks in no small part to the efforts of then-Senate Majority Leader Mitch McConnell, Gorsuch was featured at an event that organizers hoped would help eventually raise money for an academic center at the University of Kentucky law school honoring one of McConnell’s closest friends, the late U.S. District Judge John Heyburn II.

Looking to reach the initiative’s $3.5 million endowment goal, Martha Heyburn, the judge’s widow and founder of the Heyburn Initiative, developed a fundraising document for potential donors that highlighted media coverage from an earlier appearance by Roberts and teased a forthcoming visit by Gorsuch.

The university “has not announced (publicly) that Justice Gorsuch will be the speaker, so please keep this information confidential,” the document states.

University spokesman Jay Blanton said in a statement that the event was not a fundraiser and "that was not the intent of the events in any way.”

After Gorsuch’s public talk, the agenda called for Gorsuch and McConnell, R-Ky., to dine with a small private group before a reception at the university president’s house.

Records show that among those present for the reception was a major Republican donor and owner of one of the nation’s largest coal-mining companies, Joe Craft III, and his wife, Kelly, who would serve as Trump’s ambassador to Canada and this year unsuccessfully sought the Republican nomination for governor.

The couple has donated at least $13.3 million to Republican candidates and causes at the federal level since 2010.

Craft was then mounting an aggressive effort to push Trump’s Environmental Protection Agency to strip away some regulation of the industry. Last year, the Supreme Court’s conservative majority issued a 6-3 ruling limiting the EPA’s authority to curb carbon dioxide emissions from power plants.

The Crafts have donated millions of dollars to university programs. But Kelly Craft said the couple did not know Gorsuch or speak with him.

“I can assure you, there was nothing discussed,” she said.

In its statement to the AP, the court said, “Justices exercise caution in attending events that might be described as political in nature, following guidance in the Code of Conduct which cautions judges against engaging in political activity. Merely attending an event where an elected official might also be in attendance — such as several of the events described in your email — does not necessarily render the event impermissibly political in nature.”