I feel like the news about Associate Supreme Court Justice Clarence Thomas has some important complications to it, so here I am to complicate things.
First of all, obviously, this is corrupt. When a fellow like Harlan Crow, who has business interests that court decisions affect, and who is active in associations that also have matters before the court, gives valuable gifts to a Supreme Court Justice, and that Justice accepts those gifts clandestinely, that’s corrupt. It should be illegal and it was obviously unethical, and Justice Thomas should obviously have refused to accept such gifts, or at the very least to have accepted them openly.
But also obviously, this personal corruption had very little effect, in narrow terms. I have not seen anyone argue that any specific cases were decided the way they were, or any specific cases were even accepted before the court, because of the relationship between Justice Thomas and Harlan Crow. I haven’t seen anyone point at the text of a decision, or even of a dissent, and plausibly argue that it represents a quid pro quo. Justice Thomas is not a Conservative (or a Radical Reactionary, or a Textual Originalist, or whatever you want to call his so-called judicial philosophy) because he is being paid off. He was not bought.
Imagine someone offering Justice Thomas a super-yacht vacation in exchange for a vote to preserve same-sex marriage, or a private jet trip in exchange for upholding gun regulation. Imagine trying to purchase the Justice’s agreement to hear a case that would then be decided in a way he opposed, or even attempting to buy a sentence or phrase in a decision that was antithetical to his philosophy. It’s preposterous—and the idea that his vote or voice was bought is preposterous. He is who he is, and also he has been corruptly taking gifts from someone with business before the court.
And the thing is: that’s how most of the corruption in our politics works! Yes, it’s properly troubling that our legislators and elected officials build relationships with wealthy campaign donors (although I feel it’s important to repeat that those officials don’t keep campaign donations—mostly, legislators don’t benefit personally from campaign donations to anywhere near the extent of a yacht trip) and those relationships are not healthy for our politics. But they are not bought and sold. No amount of campaign donation or personal gifts would convince Senator Schumer to abandon reproductive freedom or convince Senator McConnell to support it. Organizations that advocate on that issue support legislators and candidates who already support their positions; the legislators and candidates don’t adopt positions in exchange for that support. There is no quid pro quo. And yet, it’s troubling.
(It’s not really an aside to admit that there are lots of policy areas where a legislator or judge or executive really might change their position in a quid pro quo—I would estimate that most people in politics really truly care about half-a-dozen policy positions, and could be swayed on most of the others. Most of the time, those less salient policy areas are firmed up by things like Party loyalty and constituent service, but there are still plenty of areas where a public official could (and some public officials do) sell their positions for personal gain. But those tend to be things like what the precise route of a new roadway will be, or which contractor gets the work on renovating the school building, or which bank handles which financial transactions for a particular office. They don’t tend to be high-profile matters on which those officers are on record before their election or appointment.)
So, then the question this all brings up is: so what? Why am I bothering to write a note complaining that many people consider Justice Thomas to be corrupt in a different way than I consider him corrupt? Why does it matter?
It matters because for the last thirty years, there has been a concerted effort to portray public corruption in terms of our elected (and appointed) officials being “bought and sold” by wealthy donors. This is effort has probably been well-meaning, but (a) it significantly misrepresents what is actually going on in terms of the disproportionate influence of disproportionately wealthy people; (2) it has certainly failed to reduce the disproportionate influence of disproportionately wealthy people, and also has certainly and obviously failed to reduce the disproportionate concentration of wealth in this country, which is a bigger problem; and (iii) it has eroded the popular belief in and attachment to democracy generally, by which I mean the entire process of participatory self-governance, and this has contributed to the increased precariousness of US democracy. In fact, I think one of the primary drivers of American Fascism—by which I largely mean the increasingly large percentage of Americans who do not accept the legitimacy of anyone who isn’t on “their side” participating in government, and who do accept the use of the government’s power against all or any of those people who aren’t, in their eyes, legitimate.
I don’t like Justice Clarence Thomas. I don’t think he has been a good justice, and I think that his relationship with Harlan Crow was corrupt and corrupting. I wish that the Senate had not confirmed him in the first place (and Our Only President does bear some of the responsibility for that) and I think his tenure is an excellent example in the flaws in lifetime appointment of Supreme Court Justices, in the world as it is now. I think it’s great that there is widespread outrage. But I worry about the future of our democracy, and I think that the language in which that outrage is being most frequently expressed (at least where I see it) increases the dangers to it.
Tolerabimus quod tolerare debemus,