We have Clarence Thomas to thank for the latest illustration of how the Supreme Court’s outsize 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.
Finally, here we are: Donald Trump’s first indictment. The 34 felony counts unsealed at his arraignment this week focus on the falsification of business records in the first degree, a low-level felony charge. This indictment may not prove to be the rock-solid legal case one might hope it to be. It neither addresses the gravest allegations leveled at Trump — subverting the vote, attempted coup, rape — nor is it the most potentially persuasive case against him under consideration. Whether the evidence proves strong enough to convict him will be up to legal analysts to parse and ultimately, a jury to decide months from now.
But for the moment, let’s appreciate the karmic justice of these particular charges — no matter the outcome. Falsifying business records to cover up hush money payments to a porn star, brings us full circle to the sleaziness we knew about well before Trump ever set foot in office. In the indictment’s focus on Trump’s financial malfeasance and his flagrant misogyny, the charges recall two pivotal events that took place before his election: his failure to disclose his tax returns and the contemptuous behavior revealed in the “Access Hollywood” tape.
Both told us everything we could have expected from a Trump presidency. Both should have stopped Trump from becoming president. And the fact that they didn’t — that roughly half of American voters were willing to overlook Trump’s moral failings in the service of politics — shows why the country is still so intractably polarized. But neither side can claim it didn’t know exactly the kind of person who was elected in the first place.
Let’s step back, then, to Trump’s emergence as a presidential candidate in the 2016 election. Anyone who’d been following his antics for decades assumed, wrongly, that nobody would take seriously the prospect of a corrupt businessman, third-tier reality TV showman and object of tabloid ridicule as president.
That many Americans nonetheless did take the prospect seriously seemed bound to be undone by those two pre-election events. First, Trump’s refusal to release his tax records was a departure from years of accepted practice. If he had nothing to hide, he would have shared his returns. If he had been telling the truth, he wouldn’t have repeatedly said he intended to share his returns. And if he couldn’t abide by this seemingly innocuous precedent, we knew he would not follow others. And that’s what we got: the blatant graft that marked his term in office, whether it was his rampant financial conflicts of interest, his frequent self-dealings and misuse of the Trump International Hotel and other properties or the taxpayer-funded excesses and shady profit-seeking by members of his extended family.
The second event was the release of the “Access Hollywood” tape,which revealed a man with such disdain for women that he would respect neither their humanity nor their bodily autonomy. To anyone paying attention, Trump’s vocal contempt for women had been on display in New York and on “The Howard Stern Show” for decades. But “Access Hollywood” made it plain to everyone, immediately before the election, exactly what kind of man we were getting: one who would callously separate mothers from their children at the border and deliberately appoint people to the Supreme Court who would overturn Roe v. Wade.
Perhaps Trump himself recognized the parallel. As the Times reporter Maggie Haberman noted on the day he pleaded not guilty to the charges, “One of the few times Trump has looked as angry as he just did was when he was at the second presidential debate with Hillary Clinton two days after the infamous ‘Access Hollywood’ tape became public in October 2016.”
Lying. Cheating, personally and professionally. Financial misdeeds. Sexism. Whatever the eventual outcome of this trial, the moral and political case against Trump now echoes the case against Trump back then.
Last Thursday night at the end of a Broadway performance of “Parade,” a musical about the wrongful murder conviction of Leo Frank in Georgia in 1913, the star Ben Platt addressed the audience after the ovations to contrast that woeful history with the rightful indictment of Donald Trump that day. The audience’s resounding cheers in response may have surpassed the considerable applause for the performance itself.
Some say the indictment of a former president, however justified, is no cause for celebration. That we should not be happy that a former American president has been charged with a crime. That it sets a dangerous precedent on the road to banana republic-dom.
But we should be happy that this former president was indicted.
Too many years of knowing that Trump’s time in office would deliver on the sleaziness of its promise. Too many years of an endless cycle of revelations and accusations met with impunity, which have felt like an inconceivable injustice to those of us who continue to believe — against often crushing evidence to the contrary — in the existence of any kind of justice at all. There is, it must be said, a deep satisfaction in knowing that after too many years of suffering through the Trump we got, Trump himself finally has been gotten.
It's pretty fucking simple: If you won't do anything at all about the number one cause of deaths in children and teenagers in this stupid country, you don't get to say you care about children. It really is that easy. No matter what policies you support, good or shitty, you are a fucking fraud if you won't step up on the number of and easy access to firearms, especially high-powered weapons with large magazines. If your house is on fire but you're ignoring that because you want to spackle a hole in the wall, then your minor repair is worthless. That wall's gonna burn, too.
After another shooting at another school, this time in Nashville, with 3 kids and 3 adults murdered by a shooter who had bought their guns legally, Republicans practically lined up to tell parents everywhere that they don't fucking care if your children die. Senator John Cornyn from Texas, who was a Republican co-sponsor of the mild gun legislation that was signed into law in 2022, said, "I would say we’ve gone about as far as we can go" on any additional gun control laws. Profiles in chickenshit.
Then there was the kind of motherfuckering that you only expect from a motherfucker who thinks he can fuck mothers with abandon and still get reelected. Rep. Tim Burchett from east Tennessee (so not Nashville) actually said, "We're not gonna fix it. Criminals are going to be criminals."And when asked to clarify, he actually doubled down, saying, If you think Washington is going to fix this problem, you’re wrong. They’re not going to fix this problem. They are the problem." Prior to admitting that he won't do shit to prevent your children from dying, he actually said, "We need a real revival in this country. Let’s call on our Christian ministers and our people of faith." And whenever one of these nutzoid Jesus humpers talk about faith being the solution to gun crimes, someone needs to remind them of how many fucking houses of worship have been the sites of gun massacres. Were the people there not faithful enough?
But what Burchett, who looks like what you get if a neo-Nazi incel fucked a Confederate general statue, said is revealing: Guns are more important than your children's blood. Guns are more important than feeling safe sending your kids to school. And no matter how many kids die, we Republicans aren't gonna lift a goddamn finger to do something about the number one cause of childhood death.
Oh, except two things.
First, they're gonna pass more pro-gun laws in places like, well, looky fuckin' here, Tennessee. Yeah, the General Assembly is well on its way to lowering the age to carry a gun to 18. It's also gonna legalize open carry, although there is actually a debate on whether or not to allow you to open-carry an AR-15, which, these days, almost counts as moderate. All over, apathetic assholes are passing "constitutional carry" laws, which allows for concealed carry of a firearm without a permit. So, in other words, I could walk past the governor of one of those states while holding a gun, and no one can do shit about it. But if I threaten the governor with my words, I can be arrested. Which amendment is first again? (Note: I'm cool with limiting speech when it comes to threats, even though the First Amendment doesn't require shit to be "well-regulated.")
The idea that more guns will solve the gun problem - whether it's a gun-purchasing free-for-all or arming teachers - is madness and should be treated like it's madness. If you take a Christmas photo with your family holding rifles, it's madness and should be treated like it's madness. If you own seven guns, like the Nashville shooter did, or more, as lots of Americans do, it's madness and should be treated as madness. We are far too fucking polite with the gun worshippers. They're fucking crazy. Just because something is allowed doesn't mean that you can't do it to an insane extent. If you go to an all-you-can-eat buffet and keep stuffing your face until you vomit, no one's going to say, "Well, look at the sign." They're gonna tell you to stop eating, you dumb fuck.
The other thing that right-wing fucknuts are doing is blaming trans people in general because the shooter was apparently a trans man. We don't know a single motive, but it's sure as fuck easier to blame everything else except, you know, the actual weapons. Fox "news" and all of Murdochia is losing its shit over the idea that a trans person could commit mass murder, as if nearly every other mass shooting wasn't committed by a cis white male.
Anything, anything, anything except to accept blame for all the blood spilled, all the dead children, all the schools ruined. "Oh, I care about the children," you might say, you oh-so-fucking-brave-Republican, "but I want to stop child trafficking. I don't want doctors to mutilate children in the name of gender madness. See how much I care?" Except your solution to child trafficking is to not do anything to actually stop it except to attack people who aren't involved in it, like drag queens. And doctors aren't mutilating kids. They're providing gender-affirming care that actually saves lives.
No matter what, you're still not doing a thing about, again, the number one killer of kids. And if you're not going to do it, if you're going to pretend it's unsolvable despite the fact that nearly every single other country has solved it, if you're going to walk away from any responsibility, then have the decency to get the fuck out of the way and let others handle it. Otherwise, you're an accessory to slaughter.
