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By Jamelle Bouie
We have Clarence Thomas to thank for the latest illustration of how the Supreme Court’s outsized power, isolation and virtual immunity from public pressure has made it a magnet for corruption and influence-peddling.
For more than 20 years, according to an investigation by ProPublica, Justice Thomas received lavish and expensive gifts — including luxury trips to private resorts — from Harlan Crow, a Texas billionaire and real estate developer with a long record of extensive support for Republican politicians, conservative media and the Federalist Society.
Under a federal law passed after Watergate, it appears that Thomas was supposed to disclose these gifts and trips to the government. He hasn’t. Instead, Thomas has lived a lavish life on the largess of his rich confidant while posing, in public, as the most humble and unassuming of the justices. In return, Crow has gotten direct access to one of the most influential and powerful men in America.
Not a bad trade.
If Thomas were an ordinary federal judge, this conduct would be an obvious — and flagrant — violation of the judiciary’s code of ethics. But that code doesn’t actually bind the nine members of the Supreme Court. For them, it is mere guidance.
For his part, Thomas denies wrongdoing.
“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas said in a statement. “I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”
And while several Democrats, most notably Representative Alexandria Ocasio-Cortez, have called for investigations and even impeachment, there’s no real expectation that Thomas will even answer questions about his conduct, much less face consequences for it. He is still as free as he’s ever been to treat his seat on the court — ostensibly a public trust — like a winning lottery ticket, to redeem with the nearest friendly billionaire (who happens to have a collection of Nazi paraphernalia and Hitler-related souvenirs).
Last year, in the wake of a different Supreme Court ethics scandal — involving a sophisticated and well-funded influence operation aimed at Republican justices like Thomas and Samuel Alito — I wrote about the problem of lifetime tenure for judges and justices. The framers of the Constitution embraced service on “good behavior” because they wanted a truly independent judiciary, free from the corruption and venality of ordinary politics.
As Alexander Hamilton explains in Federalist No. 78, “That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.”
“Periodical appointments, however regulated,” he writes, “or by whomsoever made, would, in some way or other, be fatal to their necessary independence.”
But, I asked, “What if lifetime tenure, rather than raising the barriers to corruption, makes it easier to influence the court by giving interested parties the time and space to operate?” My answer was that it does. Nothing that has happened since makes me think any differently.
There is a second point to make here, one that harks back to arguments from the anti-Federalist opponents of the Constitution.
Turning his eye to the Supreme Court, the writer who called himself Brutus blanched at the power and authority that the Philadelphia convention entrusted in such a small group of men. “Every body of men invested with office are tenacious of power,” he wrote. “The same principle will influence them to extend their power, and increase their rights” and, he continued, “enlarge the sphere of their own authority.”
Taking aim at the other source of concentrated power in the proposed new government, the Senate, the Maryland antifederalist Samuel Chase complained that “its members are too few” and that its small size leaves it vulnerable to “bribery and corruption.”
“No free people ever reposed power in so small a number,” he said.
Although I can’t say for certain, it sounds like both Brutus and Chase are channeling Machiavelli’s observation that “the few always behave in the mode of the few.” Build an exclusive, oligarchical institution, and you’ll get an exclusive, oligarchical politics.
This has always been true of the Supreme Court — a reliable friend of property, capital and class rule throughout its 234-year history, occasional bouts of decency notwithstanding — but it has become an acute problem in this era of unchecked judicial supremacy. As the court arrogates more and greater power to itself, and grows both distant from and contemptuous of public opinion, it naturally attracts flatterers and intriguers.
With his close ties to a powerful, property-owning billionaire, Thomas embodies the historic role of the Supreme Court in American politics, not as a liberator or defender of the rights of political and social minorities, but as a partner to and ally of moneyed interests.
Thomas also shows us something of the real world of corruption. The Supreme Court’s ruling in McDonnell v. United States notwithstanding, corruption is much more than a cartoonish quid pro quo, where cash changes hands and the state is used for private gain. Corruption, more often than not, looks like an ordinary relationship, even a friendship. It is perks and benefits freely given to a powerful friend. It is expensive gifts and tokens of appreciation between those friends, except that one holds office and the other wants to influence its ideological course. It is being enmeshed in networks of patronage that look innocent from the inside but suspect to those who look with clearer eyes from the outside.
The Supreme Court is not going to police itself. The only remedy to the problem of the court’s corruption — to say nothing of its power, — is to subject it to the same checks and limits we associate with the other branches. The court may adjudicate disputes within the constitutional order, but it does not exist above or outside its reach. In practice, this means the Democratic Party will have to abandon its squeamishness about challenging and shaping the Supreme Court and the federal judiciary. Whether it’s through structural change or a simple ethics code, it is up to elected officials to remind the court that it serves the republic, and not the other way around.
We have a poor record of elite accountability in American politics. But even by our pitiful standards, we seem to be living in an era of almost total impunity for people of influence. Both the powerful and their apologists treat political authority as a grant of freedom from rules, responsibilities, duties and obligations. You see it in the case of Justice Thomas, whose defenders say he is the victim of a smear campaign. His relationship with Harlan Crow, The Wall Street Journal editorial board writes, is a “non-bombshell.”
This is not how a republic should work. Our leaders — who chose to vie for influence — should be shackled by the power they wield, not free to abuse it for their own interests and their own pleasures. And if they won’t act in the spirit of public service, then we should make them.
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