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“Clarence Thomas: The Best and Most Incorruptible Supreme Court Justice in U.S. History,” wrote Northwestern law professor Steven Calabresi a couple weeks ago. Arriving at the end of a year where we learned — mostly from the hard-working folks at ProPublica — that Thomas had taken hundreds of thousands of dollars in gifts and other compensation for himself, his wife, and his extended family (all without disclosing them to the public as he knew he was legally required to do), this struck many as a downright looney take. Personally, I thought the essay read like a too-dry-by-half bad satire.
Now Calabresi is back at the Volokh Conspiracy doubling down on his original premise and forcing us to further wonder: is he really just committed to this bad bit or has he fully taken leave of his senses?
I say this because neither legal academia nor the news industry seem to be aware that the very best justice, which the Supreme Court has ever had is currently serving on the bench…. Justice Thomas has such a clear body of rules, which he consistently follows in case after case over 32 years on the bench that it is as obvious as the day is long that he is incorruptible in every sense of that word. Justice Thomas would never “bend” the law to please Justice Scalia, his closest friend; his wife Ginni Thomas, who is active as she has every right to be in politics, or his good and close friend; the Koch brothers; Texas billionaire Harlan Crow; or anyone else.
“Every sense of that word” except the one that required him to publicly disclose these gifts. A deception that is impossible to divorce from unearthed records that he hinted to monied conservative interests that he might abandon his seat — which would’ve been replaced, at the time of the rumblings, by Bill Clinton — unless somehow he ended up with more money.
Which, of course, is the point. No one suggests that Thomas planned to go hard left if he didn’t get some cold hard luxury vacations. But his replacement might. That’s what a concerned megadonor might pay to avoid. It’s “awfully nice Supreme Court you’ve got here… shame if anything happened to it.”
This is also why Calabresi’s claim that Thomas is “the very best justice, which the Supreme Court has ever had,” undermines his incorruptibility assertion. By Calabresi’s logic, a retirement threat wouldn’t even hinge on a Democrat like Clinton occupying the White House. Thomas was so much “better even than my old boss Justice Antonin Scalia” that the prospect of Bush replacing him with a John Roberts or Harriet Miers would be enough to convince hard-right financiers to keep funneling under-the-table gifts Thomas’s way.
Believing he’s “the best” is what makes the whole sordid affair work.
But… does Calabresi really not get that? This is why it’s so hard to shake the feeling that this is satirical. He “would never ‘bend’ the law” for Ginni? He sat alone on an 8-1 decision to shield Ginni from January 6 scrutiny! Name checking the Koch brothers and Crow just feels gratuitous. An Onion article defending Thomas wouldn’t be so heavy-handed.
If Congress had adjusted for inflation the salary that Supreme Court justices made in 1969 at the end of the Warren Court, Justice Thomas would be being paid $500,000 a year, and he would not need to rely as much as he has on gifts from wealthy friends.
Look, if the legislative branch paid the judicial branch more, they wouldn’t need to take illegal gifts? Not sure about this particular “originalist” reading of the separation of powers. Indeed, there’s pretty good evidence that the Framers never supported the justices entrenching themselves as America’s nobility and would’ve preferred salaries that encourage turnover.
Now, technically Calabresi here is only giving a reason for Thomas taking undisclosed gifts but not necessarily condoning it. Don’t worry, he’s going to do that too!
Clarence Thomas grew up dirt poor…. He has devoted his entire professional life as a lawyer to serving in government jobs in which he has been grossly underpaid. Under these circumstances, Thomas, who again is incorruptible, as his 32 years of judicial opinions all show, has every right to accept gifts from wealthy friends.
He has a RIGHT to take gifts! And, presumably, a right not to disclose them.
I mean, this is so ridiculous that it has to be a joke. This is the argument that spies give when they’re caught passing secrets because they’re underpaid at the NSA or something. Yes, the Supreme Court functionally legalized public corruption in the McDonnell case by requiring an “official act” to constitute a crime and, yes, implying that you might resign probably isn’t an official act, but there’s a lot of daylight between “not enough to support a criminal conviction” and “a right to take gifts from parties trying to influence the Court.”
And the clause “who again is incorruptible” screams sarcasm. No one writes that unless they’re lampshading.
Right?
And yet!
Calabresi is back to defend the piece from his critics and either he’s sticking with the bit way past its expiration date or he really is bonkers.
First, I am not alone in thinking that Clarence Thomas is the best of the 116 Justices to ever serve on the Supreme Court. I am one of the three co-founders and the 40 year Co-Chairman of the Federalist Society’s Board of Directors.
Wait, can he say that? The last time he tried to — factually — refer to himself as a FedSoc co-founder he got caught up in a purity purge.
As to Justice Thomas’s failure to disclose gifts, he asked what the policy was and was told by his colleagues not to worry about disclosing vacation travel or gifts to support his elderly mother or the boy he is raising who has been abandoned. Congress has no enumerated power to require the justices to disclose any gifts anyway. Such a law is not necessary and proper for carrying into execution the judicial power of the United States. Steven Gow Calabresi, Elise Kostial, Gary Lawson, What McCulloch v. Maryland got Wrong: The Original Meaning of “Necessary” is not “Useful,” “Convenient,” or “Rational”, 75 Baylor Law Review 1 (2023).
This is false. Congress has the power to make all government officials disclose their gifts for a lot of reasons, not the least of which is — as Calabresi suggests in his first piece — Congress controls the purse and has an interest in making sure both that judges are paid appropriately and that they aren’t misusing those resources by being on the take. Indeed, Clarence Thomas doesn’t seriously question that Congress has this power, which is why he continues to turn in deficient disclosures rather than nothing at all.
As to the claim that Thomas innocently misunderstood the policy, Thomas had already been caught failing to make legally required disclosures over a decade ago and escaped punishment on the grounds that he didn’t know any better. Not an excuse that works all that great on the second go around.
Back to the question of bestness.
The Supreme Court from 1790 to 1860 had thirty six justices of which only four—two each appointed by John Adams and John Quincy Adams—opposed slavery. The other thirty-two justices were appointed by slaveowner Presidents or northern dough-faces complicit in slavery. This reflects the advantage the three-fifths clause gave the South in the Electoral College.
It strikes me this describes the most originalist stance of all, but whatever.
Well what about the justices who served from 1790 to 1986 when Justice Scalia joined the Supreme Court. William Rehnquist and Byron White are condemned by Federalist Society members as being just right-wing legal realists—the right’s copy of Justice William O. Douglas. The Berger Court is viewed as having been a wasteland of intellectual mediocrities including Chief Justice Burger and Justices Harry Blackmun, Louis Powell, Potter Stewart, and Sandra Day O’Connor.
Affirmatively calling O’Connor an intellectual mediocrity within weeks of her death? Maybe it’s time to step back and touch some grass, my dude.
[UPDATE: Also, as ATL Columnist Jill Switzer just pointed out, it’s “LEWIS Powell” not “Louis Powell.” Apparently he was so mediocre Calabresi didn’t even need to learn his name.]
Justice Thomas has lived a good life. He has exemplified the four classical Greek and Roman virtues of: 1) Courage; 2) Temperance; 3) Justice; and 4) Prudence. Justice Thomas is by far and away the bravest justice on the Supreme Court. He has been vilified for being the personal hero of the 70,000 member Federalist Society, and he has learned to live with it. Justice Thomas does not eat, drink, or travel to excess.
Wait. Is this satire?
“Travel to excess” is just a hanging slider that could only end up in the final draft by design. Thomas took hundreds of thousands in gifted travel and got a goddamned RV bought for him by a health care executive! This can’t possible be meant to be taken seriously.
Right?
Clarence Thomas: The Best and Most Incorruptible Supreme Court Justice in U.S. History [Volokh Conspiracy]
Defending Clarence Thomas from My Good Friend Steve Lubet [Volokh Conspiracy]
Earlier: Paragon Of Virtue Clarence Thomas Has Been Given Half Million In Value Off The Record And It Totally Hasn’t Impacted His Judging. Not One Bit. Nope.
Clarence Thomas Skated On Ethics Complaints In 2012… Meaning He Definitely Already Knew The Rules
Appearance Of Bribery: Political Megadonor Wants Us To Believe He Bought And Improved Justice’s Mom’s House Off The Record Because Of History Or Something
That Perfectly Innocent Way One Funnels Money To The Spouse Of A Supreme Court Justice While Trying To Avoid A Paper Trail
Clarence Thomas RV Financed By Rich Health Care Executive In Least Shocking Development Ever
It’s Going To Be A Lot Harder For Clarence Thomas To Justify The Most Recent Ethics Scandal
Federalist Society Tells Founder He Can’t Call Himself ‘Founder’ In Purity Purge
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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