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,
-Vardibidian.
I would find this post to be more helpful in its objection to the claim that Thomas’s corruption means he is “bought and sold” if it would articulate more clearly what is corrupt about Thomas’s actions. You assert that they are corrupt and that the larger system of relationships between judges and elected officials on one side and wealthy campaign donors (of which Thomas’s relationship with Crow is only one example) is “troubling,” even though there is no quid pro quo, but you haven’t named the nature of the problem. If we’re not going to say that a man like Thomas is “bought and sold,” we still need a description and an account of corruption, so that we know what corruption is.
And I have to say that I am looking for that description because it does seem to me that, on a deep level, Clarence Thomas is bought. He does not act, and perhaps never has acted, as an agent of justice. He acts as a political operative for wealthy interests. Because he sold his soul early in his career, he does not need to sell individual decisions to use his position to enrich himself; instead, he collects royalty payments for his performances. He is never going approach a case with an open mind or give a fair hearing to arguments that go against the interests of the conservative oligarchy. His partiality is obvious and thorough-going, and the distinction between such partiality and being “bought and sold” is not obvious to me.
Would I be right to think that what should be said about Thomas’s corruption is something like this? “No one with regard for impartial justice would perform these corrupt acts of accepting such lavish gifts while serving as a judge. If Thomas is not in the service of impartial justice in his work as judge, then he is in service to something else. If he sits on the supreme court and serves an interest other than impartial justice, he is corrupt, and his actions corrupt the court.”
I feel like it’s pretty hard to distinguish between “I hold these odious positions, because you paid me a lot of money to hold them, and I have held them consistently my entire life, because I want you to keep paying me” and “I hold these odious positions, because I sincerely believe in them, and you paid me a lot of money because you agree with them too”.
Especially when the odious positions relate to how you interpret “serving the interest of impartial justice”. I suppose it’s possible, but I kinda doubt that Thomas believes that serving the interest of impartial justice would lead him to one conclusion, but because he believes in various odious things more than he believes in impartial justice, he comes to a conclusion that aligns with his odious beliefs but is contrary to impartial justice. I suspect instead that the nature of his odious beliefs are such that his view of what “impartial justice” demands is odious and disagrees with ours.
I should add that when people, as Justice Thomas has done, proves themselves untrustworthy, and specifically demonstrates that they find their relationships with gift-givers to be more important than honesty and integrity, then it is very reasonable for people to assume that the relationship will continue to be more important than honesty and integrity, and that there are other such relationships, and worse.
This is very different from, for instance, someone who accepts donations to a campaign fund, openly, is willing to discuss the donation and the shared interests of the donor and the campaign, and then uses that money to do the actual campaigning.
Thanks,
-V.
That sounds entirely correct!
I feel it is precisely this ideal of impartiality that is so corrupted by the clandestine acceptance of lavish gifts from people with business before the court. In large measure, these gifts are (part of) his reward for remaining _true_ to his ideology (such as it is), which to my mind corrupts even the ideology. I don’t think that a Supreme Court Justice can have such a relationship and remain true to the Court, even if the favors are all one way. And even if the individual Justice knows, in his heart, that he somehow remains in his work entirely above that relationship, how are the other Justices to be so certain?
This is all the worse, in my opinion, because Supreme Court Justices have no constituents. For a legislator, or an elected executive, it is in the end for the constituents to decide whether such a relationship is corrupting. My standards may well be different from other voters, and there is a mechanism for the voters to do with it what they think best. But with a Justice, who (for good reasons) does not answer to voters, it is all the more important for them to hold to the _highest_ standards, not their own.
Thanks,
-V.
I’m curious if you’ve changed your mind about the lack of quid pro quo now that the news has come out about the secret payoff to his wife a few months before the Citizens United decision?
There have been other Justices who have evolved to become more liberal in significant ways during far less time than he has had on the Court, while he has not. Payoffs to avoid changing is, to me, not substantially different from payoffs to change.
Our political system is allowing him to stay on the Court despite rampant, blatant corruption. That is a hallmark of a fatally broken political system.
Well, certainly the off-the-books payment to his wife is even more obviously corrupt than the more-or-less-openly-secret jet rides and yacht trips. I still dislike the phrasing of “bought and sold”, but I am happier with phrases such as “under-the-table payment” and “presumably bribes” than I was before.
I am even more concerned that there does not appear to be any sense among the rest of the Justices that this kind of thing is outrageous and unacceptable. I don’t know why I haven’t seen anything from Justices Kagan and Sotomayor—or for that matter retired Justices Kennedy and Souter—saying clearly that they have not and would not engage in this sort of thing, and that no member of the Court—or indeed any judge!—should do so.
One corrupt Justice? That’s clearly a problem, and the reluctance to remove him is indeed a hallmark of a broken system. But if that sort of behavior is ‘normal’ and the other Justices do not see that it’s corrupt… that’s a deeper problem.
Thanks,
-V.
Justice Kagan’s position on the ethics of accepting gifts has become clear:
“A group of women who went to high school with Supreme Court Justice Elena Kagan wanted to send her bagels and lox from Russ & Daughters, the legendary deli on the Lower East Side. But they scrapped the plan after Kagan expressed concerns about the court’s ethics rules for reporting gifts.”