Justices and Their Friends

Jonathan Chait responds to my magazine piece and National Review‘s editorial on Clarence Thomas, Harlan Crow, and the wider left-wing assault on the Supreme Court (most of which Chait characteristically avoids mentioning). The main thrust of his argument is that it is inherently corrupting for Supreme Court justices to fear alienating their social circles:

Thomas’s lifestyle is utterly dependent on staying in the good graces of Republican pooh-bahs. If he were to, say, break from the conservative bloc on an important legal case, he would be putting at risk his access to free luxury vacations, free private-school tuition for the relative he is raising as a son, free housing for his mother, funds that Leonard Leo is directing to his wife, and perhaps other as yet undisclosed perks. . . . If [Thomas and Crow] are friends because they share similar political views, if Thomas were to waver from their shared viewpoint, it could put the friendship at risk.

Now, I don’t think it’s likely that Thomas has shied away from any particular rulings for fear that he will have to find another way to spend his vacations or pay for private school. But a system that relies on trusting public officials to disregard their financial interests is hardly safe from corruption. It’s not really a system at all — more like an open invitation for donors to enmesh judges in social networks that make political defection an expensive proposition.

Chait’s argument proves too much. First, if the problem is that “social networks” around the justices are composed of people who share the ideological worldview (and perhaps the partisanship) of the people who appointed the justice, and that the justices fear losing the respect and society of these people, that’s not something that disclosure rules can fix.

Consider, however, what typically motivates a Supreme Court justice. Let’s face it: If you wanted to make a lot of money as a lawyer, being a judge (even a Supreme Court justice) is a terrible way to go about it. The current salary scale is $232,600 for a federal district judge, $246,600 for a court of appeals judge, $285,400 for an associate justice, and $298,500 for Chief Justice John Roberts. Justice Thomas made $153,600 a year when he joined the Court and was still paying off his student loans, and he didn’t clear $200,000 per year until 2006. Those are comfortable salaries compared with the median nonlawyer, but the current pay scale at the top New York City law firms starts at $215,000 for a first-year lawyer who hasn’t even passed the bar yet. It exceeds Thomas’s salary by the fourth year and breaks $400,000 for a seventh-year associate. Partners can earn multiples of that: At Roberts’s old law firm, average earnings per partner were $2.278 million. All across the country, there are less talented lawyers than the justices who make many times as much money as the justices do.

The justices can make a lot more money by writing books, for example. But the point is that while we once lived in a world where Supreme Court justices were people who had made their names as successful legal practitioners, justices today are typically people who have spent the bulk of their careers in the judiciary, in academia, and in elite public practice. What that means is that today’s federal judiciary tends to attract the kinds of people who are driven more by ideas, power, prestige, and intellectual respect than by money. They are the sorts of people who climb a judge track early on in their careers and surround themselves with the sorts of people who recommend and promote judges. Given that incentive structure, the justices on both sides of the ideological and partisan divide are already powerfully incentivized by their existing friendships and professional circles to adhere, most of the time, to their stated convictions.

The effect of personal and professional relationships on justices is a problem that’s almost impossible to fix, and, to an extent, it’s not even a problem at all. For reasons of principle, we want judges whose views are predictable and constant. For reasons of democratic control of the courts, we want judges who rule from the bench more or less as would the people who put them there — not in the sense of ruling for one party or a set of results but in terms of standing by a consistent view of the Constitution, the laws, how the world works, and the judiciary’s place in it.

Moreover, it is comical to suggest that this is an issue unique to the conservative justices. The carrot-and-stick of media coverage that pulled justices to the left on social issues was long known as the “Greenhouse effect,” after chief New York Times Supreme Court correspondent Linda Greenhouse. Much of the apparatus of the modern legal academy, the bar associations, and other circles in which judges travel exists to flatter judges who rule the “right” way on fashionable causes. What really irks Chait and the other critics is not that such social pressures exist, but that an alternative set of circles has appeared that pulls in the other direction. And while financial corruption can certainly be a problem if judges are compromised into making rulings on particular cases that they would not otherwise have made — that’s why we have a recusal statute and financial-disclosure rules.

Chait’s real complaint about Thomas is that Thomas consistently does exactly what his stated principles would require him to do. We shouldn’t indulge the pretense that this is about anything else.