The Scandal isn't in Clarence Thomas's Corruption, but His Jurisprudence

by Corey Robin

Corey Robin is a distinguished professor of political science at Brooklyn College and the City University of New York Graduate Center and the author of The Enigma of Clarence Thomas.

As soon as the story broke that Supreme Court Justice Clarence Thomas had, for decades, been taking expensive vacations on the dime of billionaire Harlan Crow, liberal critics and conservative defenders huddled around the same question: Had Thomas sold his votes on the court to the highest bidder?

Sen. Chris Murphy, a Connecticut Democrat, led off with a tweet that Crow funds a conservative outfit that has filed briefs in eight different Supreme Court cases. Each time, Thomas sided with Crow’s group. This wasn’t quite the gotcha liberals were looking for, though. Four of those decisions and judgments were unanimous, and in the other four, Thomas joined with some, sometimes all, the court’s conservative justices.

Conservative legal scholar Ilya Shapiro took the opposite tack, daring anyone to question “the sincerity of any justice.” A justice wouldn’t change his vote simply on the basis of an undisclosed gift or the company he keeps. This, too, wasn’t quite the conversation ender Shapiro and the right imagined it to be. As New York Times columnist Jamelle Bouie pointed out, “Corruption is much more than a cartoonish quid pro quo.” When money talks, the words need not take the form of “Do this, and I’ll give you that.” Money buys a lifetime of conversation between men of power. In that fraternity of words and wealth, stories are swapped, trust is gained, respect is earned, ideas are shared and preferences become policy.

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 liberal — 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, was the “idealistic professions” of journalism, the academy and the law, where people “make their living by producing words.”

In Thomas’ speech, we can hear the primal cadence of the original culture war between the right and the left. Long before they reached the battlefields of abortion or trans rights, liberals and conservatives were fighting over the meaning and status of wealth. No mere war of economic positions, this was a civilizational struggle over who in our society deserves the highest form of recognition and respect: the man of money or the man of words? Hewlett-Packard or Hollywood, IBM or the Ivy League, Wall Street or NPR?

It doesn’t take much to see how this apparent conflict is badly posed: Where, after all, do knowledge workers and bankers get their degrees if not at elite schools? From whom does Harvard, Hollywood or NPR get its funding if not wealthy elites? Even so, conservatives choose their false dichotomies wisely. Not only are these divides culturally resonant; they are also constitutionally salient.

Read entire article at Politico