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Monday, June 10, 2024

On Judicial Ethics and "corruption:" Celebs, Authors, and Medicis

In a pair of posts at the VC, Josh Blackman raises some valuable questions about modern judicial ethics. I think of them as follows: 1) Are books and book contracts for Supreme Court justices unethical? 1a) Are they corrupt? 2) Are gifts to justices unethical? 2a) Are they corrupt? 3) Are standard-issue versions of the examples of (1) and (2) no different from, or even worse than, a 26-year trail of lavishly generous patronage from real or ostensible "friends," from a legal-ethical or general-ethical perspective?  

As you can see, I tend to think of this general topic in terms of two separate categories: what is unethical in a formal legal-professional sense, and what is dishonorable or corrupt. I mean "corrupt" in the small-c sense not of acting for gain, but of moral debasement, degradation, or decline. I think it's a mistake for lawyers to treat every moral and ethical issue as a legal one, and for interest groups to publicize every act of alleged corruption as if it necessarily has some legal consequence--and, conversely, to call it a "nothing-burger" if it doesn't. The question whether a judge should recuse is relatively uninteresting to me, and the "scandal"-based arguments for recusal or punishment are often unpersuasive and, from a systemic perspective, unwise or ill-thought-out. The question whether office-holders or people with power have lost what George Washington called "a proper Sense of Honor," on the other hand, I find both interesting and crucial. that sort of quotidian corruption is, after all, the ordinary state of affairs in politics and political advocacy, and the effects of everyday small-c corruption are far more pervasive, routine, and damaging than legally unethical or criminal behavior. Corruption in this sense is also more interesting because it raises harder questions about how to participate in politics, how to live and behave in a corrupt world, what should and shouldn't be taken for granted, when and whether to respond in kind, what the going price of Wales is, and so on.

Talking about corruption in the small-c sense is admittedly harder to pin down, harder to address, and less likely to result in answers to the question what to do, although it is more conducive to asking the question "How shall I live?" It is also, perhaps, sometimes harder to face. Partisans, inside and outside of electoral politics and within both the for-profit and nonprofit sectors, are generally already soaking in it. If you already get your funding from Arabella Advisors or Leonard Leo and the Marble Freedom Trust or David Brock and his sponsors and vehicles, you are already steeped in small-c, often within-the-rules corruption. It's perhaps understandable that advocacy groups, which draw their water from the same well, would thus focus on what is actionably wrong rather than what is permitted but degrading. The greatest risk of such corruption is not so much that you will change your views or alter your life, but that you won't change a thing--just accept and entrench a dishonorable and dissatisfactory way of life, politics, and public and private morality. But this kind of corruption is still worth our attention--still worth, as it were, the continual effort to make it unfamiliar--even where it falls short of some code violation. 

From that perspective, I doubt that books or book advances present an ethical issue. Morally, perhaps the call is a little closer, given the size of book advances and, perhaps more importantly and interestingly, the niche nature of markets and the degree to which, in a polarized society, some presses (and judicial authors) are going to be thinking more about how a book should be tailored to one side of the usual divide or the other rather than seeking a general audience. My sense of the question is perhaps affected by my view that some judges--Posner, Scalia, Friendly, and others--have published books whose absence would be a loss, and so one doesn't want to disincentivize their creation. The Code of Judicial Conduct agrees. The reason I see a moral flipside is that the books most likely to earn a substantial advance are not the deep dives, but books that simply mouth platitudes or memoirs. Despite the fact that some judges obviously have interesting stories to tell, the memoirs that get larger advances generally trade off of the judge's status as a celebrity or as an idol to the right or left. Others may be keener on such projects insofar as they bridge the gap with the general public. But it is easy for such books to be not a general bridge-building effort but more of a targeted liberal or conservative project. Is that really a worthy supplement to an already-sufficient income?

On gifts, my loose read of the general approach is that we take a liberal view of gifts that are either truly personal, fundamentally trivial, or commensurate with the circumstances--both the occasion and the relationship--while requiring reporting in other circumstances to allow parties the opportunity to judge for themselves whether and when they might raise questions about the judge's impartiality in particular matters. Most of the time, that is sufficient. But a factor perhaps less accounted for is the celebrity status of a Supreme Court justice. That status can contribute to a small-c corruption, in which the justice receives gifts because of who he or she is as a general public figure, or as a prominent figure in the political divide. The gift may be of trivial value to the giver; but it can still tempt the judge to enjoy that celebrity status too much, or to become too much accustomed to access to special velvet-rope privileges handed to them because of the office they occupy. Judges are not special; judicial office is special. When those gifts accrue to the person and not the office, an air of entitlement or unearned privilege can develop. 

In that sense, one might justly be uneasy about things like Justice Jackson's gift of precious and expensive Beyonce tickets, the subject of Josh's second post. I'm not quite sure how to read that post, because some of it may be deliberately parodic. Of course no sensible person treats a quip based on song titles as actually intended to sell Beyonce records, or thinks Beyonce was seeking to curry influence with Justice Jackson; I therefore assume that Josh's comments on that score were intended to be humorous. But that doesn't make such gifts unproblematic. The problem with them, as I've suggested, is not that they involve a quid pro quo or something of the sort, but that there is something unseemly about even duly-reported generosity of this sort when it permits judges or justice to take for granted a celebrity or elite lifestyle that would otherwise be unavailable to them. It's the kind of generosity one enjoys by virtue of being a celebrity, not a judge, and a judge should avoid that celebrity status even if it means rejecting the fruits. (Even though these are legal events, I feel the same way about justices speaking at fancy ACS or FedSoc events--not that donning evening wear to listen to a justice make light jokes over the dessert course can hold appeal to anyone.) If you wouldn't get in to a concert or be able to afford the tickets otherwise, you shouldn't do so because you've become famous or notorious or adored by virtue of the robes you wear or the publicity your confirmation generated. 

Does that make such a gift as bad or worse than a 26-year record of lavish gifts and quasi-loans extending to motor homes, Lifestyles of the Rich and Famous junkets, tuition, and antique Bibles, real estate purchases, and the lavishing of lavish similar attentions on the justice's spouse? Well, of course not. Others may argue about their legality or consequences for recusal in individual cases. I'm less interested in the legal question than in its corruption and corrupting nature, in the small-c sense. I don't know whether, as Josh writes, "no one doubts that [Justice Thomas] and Harlan Crow are genuine friends." I'm also not sure why he is firm about a friendship that developed after Thomas attained his lofty status, while doubting that Justice Jackson could be "genuine friends" with Oprah or Beyonce. Isn't the question in both cases whether the relationship, even if genuine, was a product of Jackson (or Thomas) being a famous, and perhaps also a politically sympatico, judge? If Oprah wanted to meet Jackson because of her status or politics, hit it off with her, and then chose to spend the rest of her life lavishing gifts on her, giving Jackson a lifestyle she otherwise couldn't hope for, wouldn't accepting that generosity be corrupt even if they had developed a "genuine" relationship? If a judge or justice wants to get rich and enjoy the lifestyle of a rich person, isn't the answer to quit the bench and try his or her luck as a capitalist? And if the alternative is to enjoy the office and status of a judge while merely subsisting as a member of the ten percent, is that really a hardship or sacrifice?

At the moment, all one can say of Justice Jackson is that she received concert tickets--tickets she ought to have turned down, in my view--and duly and promptly reported them, without unfortunate bouts of forgetfulness, obfuscation, or amendment. By contrast, Justice Thomas seems to have treated the later-acquired friendship of a politically sympathetic plutocrat as a pleasant opportunity to live a part-time plutocratic life himself. I imagine he could have forced himself to enjoy a deep "kinship and connection" with Harlan Crow that did not involve the Bohemian grove, jaunts to Bali and other luxury outings, Frederick Douglass's Bible, and so on.

I would suggest that the legalistic frame leads us to focus on the wrong things--whether a real friendship exists, whether any votes will change, even how such a relationship will be perceived. A look further back in history suggests the more accurate way to think about this relationship. Whether a friendship exists or not, this is a three-decade relationship of patronage. Justice Thomas has allowed his friend or friends to serve, Medici-like, as a patron or patrons, enabling him to live in the lifestyle that he may mistakenly think a Supreme Court justice, or just he in particular, should receive as a matter of dessert. (This was Justice Fortas's malady as well.) But this isn't quattrocento Florence, and I can't help but see that patronage relationship as fundamentally unseemly and corrupt even if they also enjoy a true and deep friendship. It's as simple as the old British phrase: It just isn't done. A justice deserves no lifestyle in particular, other than the one his or her generous salary will afford, and should retain the good plain common sense to know it. To allow oneself to become accustomed to live otherwise is surely corrupt in the small-c sense.   

Posted by Paul Horwitz on June 10, 2024 at 05:15 PM in Paul Horwitz | Permalink


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