As a description of the problem of Clarence Thomas, however, corruption too has its limits. Morally, corruption rotates on the same axis as sincerity—forever testing the purity or impurity, the tainted genealogy, of someone’s beliefs. But money hasn’t paved the way to Thomas’ positions. On the contrary, Thomas’ positions have paved the way for money. A close look at his jurisprudence makes clear that Thomas is openly, proudly committed to helping people like Crow use their wealth to exercise power. That’s not just the problem of Clarence Thomas. It’s the problem of the court and contemporary America.
In 1987, four years before he joined the Supreme Court, Thomas gave a speech at the Pacific Research Institute, a San Francisco think tank that traces its roots to the economic philosophy of Milton Friedman and is dedicated to “advancing free-market policy solutions.” The target of Thomas’ speech was the midcentury liberals—economists like John Kenneth Galbraith who held money and markets in bad odor and whose attacks on rich businessmen defined the common sense of the New Deal.
Thomas’ view of liberalism may seem unrecognizable today, when many Democrats are as enamored of bankers and entrepreneurs as those bankers and entrepreneurs are of themselves. But the midcentury liberal was a different animal. Thomas complained that liberals saw money and economic activity as “venal and dirty,” as a grubby means to a grubbier end. Far nobler, in the liberal view, were the “idealistic professions” of journalism, academia, and the law, whereby people “make their living by producing words.”
Along with a small group of far-sighted conservatives, Thomas realized that if the activity of the businessman and the banker could be redescribed as words, as speech worthy of the First Amendment’s protections, it too could achieve the status of a constitutional right. That activity included everything from advertising to campaign contributions to the language of contracts. Like regulation of speech, any policies and laws regulating those activities could be subject to the highest levels of judicial scrutiny. Under this approach, the constitutional—and civilizational—order of the New Deal could be overturned.
On the Supreme Court, Thomas has pursued this project with great vigor—and great success. Championing the power of business in the economic sphere, he has helped strike down economic policies that impinge upon what is called “commercial speech.” Championing the power of business in the political sphere, he has taken on campaign finance laws and regulations. He has chipped away at the court’s claim that limitations on campaign contributions are a legitimate means of eliminating “the reality or appearance of corruption in the electoral process.” It is here, in the realm of campaigns and corruption, that Thomas has left his most permanent mark on the First Amendment—and a lengthy paper trail leading back to Harlan Crow.
With the revelations of Thomas’ connections to Harlan Crow, we can take one of two paths. We can focus on the salacious details of Crow’s largesse and Thomas’ long history of gifts from other rich people. My personal favorite is the $1,200 in tires he got from a businessman in Omaha. We can talk about getting Thomas investigated or impeached. We can talk about judicial ethics and how they don’t get enforced upon the Supreme Court.
Or we can use the revelations as a teachable moment. For years, progressives have fought a losing battle to strengthen campaign finance laws, claiming that money is not speech. Operating under the delusion that the Roberts Court and Citizens United are solely to blame—when liberal titans William Brennan and Thurgood Marshall co-authored the Buckley decision, which held that campaign expenditures are in fact speech—progressives have sought to reverse the oligarchic turn of American society by getting money out of politics.
If money is speech, the implication for democracy is clear. There can be no democracy in the political sphere unless there is equality in the economic sphere. That is the real lesson of Clarence Thomas.
More recently, another Supreme Court Justice’s corruption has been brought to light. Jane Roberts, the wife of Supreme Court Chief Justice John Roberts, has allegedly been paid more than $10 million by an array of high-class law firms. At least one of these firms argued a case before her husband in the Supreme Court after paying her hundreds of thousands of dollars.
And the cherry on top is that Congress has known about these allegations for months. The Senate Judiciary Committee has come under immense pressure to do something, anything, in the face of numerous revelations of how crooked America’s Supreme Court is. Justices Clarence Thomas and Neil Gorsuch have both been exposed with regard to their shady dealings. Frustration mounted as Roberts has refused to cooperate with the Senate Judiciary Committee in responding to the troubling allegations. And now, it’s becoming more and more clear why: it’s a small club, and Roberts has no problem being part of it.
Business Insider reported that two years after Roberts ascended to lead the court in 2005, his wife Jane pivoted from an illustrious career as a lawyer to become a legal recruiter, matching lawyers up to elite corporations and firms. Between 2007 and 2014, Jane Roberts cashed in $10.3 million in commissions in her newfound career. And the complaint pressing forward the revelations filed in December, reporting on Jane Roberts’s ethically-questionable career vis-à-vis her husband’s position, had been published even back in January.
The allegations come from Jane Roberts’s old colleague, Kendal B. Price, who worked at the same recruiting firm she did. In Price’s complaint, he explains that a partner at the firm told him Jane Roberts was “the highest earning recruiter in the entire company ‘by a wide margin.’” While she surely may be highly-qualified, the eye-popping numbers cause even more concern to the question of how Supreme Court justices and their families enrich themselves—particularly at the expense of judicial responsibility, given that some of the firms Jane Roberts profited from would then appear in front of the court led by her husband. “She restructured her career to benefit from John Roberts’ position,” Price wrote in an affidavit. “I believe that at least some of her remarkable success as a recruiter has come because of her spouse’s position.”
The details of exactly how much Jane Roberts has made follows the stream of revelations relevant to other conservative justices on the court. Justice Thomas has received secret and lavish gifts for decades from Nazi memorabilia–collecting billionaire and GOP donor Harlan Crow, including luxurious island-hopping excursions on superyachts and even a secret deal in which Crow bought Thomas family property and proceeded to upgrade it while Thomas’s mother still lived in it.
Last week, it was revealed that Justice Neil Gorsuch successfully sold a 40-acre property that he had been trying to sell for two years to an undisclosed buyer. The buyer of the nearly $2 million Colorado ranch was the CEO of a law firm that has since had twenty-two cases before the court. Amid all this, Senate Judiciary Committee Chairman Dick Durbin has continued to remain under fire, and understanably so. He has spent weeks now kindly passing the buck to Justice Roberts to lead reform on ethical standards for the court. He has seemingly done so while knowing that Roberts himself is implicated in potential ethics violations. Meanwhile Durbin has refused to eliminate a blue slip rule that has prevented Democrats from confirming more judges—especially while Senator Dianne Feinstein remains absent.
In the face of corruption, elected officials can either respond appropriately, or maintain false hope in the system that created such corruption in the first place. The more Durbin and his colleagues continue the latter, the more they actively allow and even encourage further corruption. These sad sagas illustrate the need not only for a code of ethics for Supreme Court justices and all judges, but an outside body of people to actually enforce such a code. If you don’t believe that corruption is rampant in the U.S. judicial system and requires this kind of remediation, then you must check out Stack the Legal Odds In Your Favor, Our American Injustice System, and other related books. Inevitably, without positive change, we will continue to accelerate deeper into the abyss.....and we will only have ourselves to blame.