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Scapegoating Thomas?

Lessig
5 min readApr 11

To be clear upfront: Justice Thomas’s interpretation of the reporting requirements applicable to him is wrong. The reading offered by Dahlia Lithwick and Mark Joseph Stern is correct. Some of the “gifts” that Thomas and his wife received (trips on a private jet, e.g.) therefore should have been reported by Justice Thomas, even if the rules permitted him not to report the vast majority of the value that he and his wife received.

Yet most of the attacks on Justice Thomas go beyond the failure to report some of his gifts. Most are attacking (1) that he took these or any gifts at all, or (2) that he took them from someone on the Right, or (3) that he took them from someone who is wealthy.

Point (3) seems odd: People with vacation homes in beautiful places in America are wealthy. Maybe not everyone. Less than wealthy families inherit family homes on lakes or in the mountains, and then struggle to keep them up. But in general, if you have a place you’re inviting a Justice to visit, it’s because you are wealthy.

Point (2) is odd as well. Of course Thomas is visiting people whose views he agrees with. It’s vacation. It’s not debate camp. And while there are famous friendships across the aisle — Justice Ginsburg and Justice Scalia, Justice Scalia and Justice Kagan—we all are closest to those we are closest to. It’s no surprise that someone would vacation with people they were closest to.

Which leaves point (1), the point about this reporting that is most odd to me: One might well believe that Justices should not take gifts like this at all — that they should never visit others, or stay with others, that their vacations should be on their own dime.

But if that’s your view, then fair reporting would ask whether Thomas’ behavior is unique or exclusive to him. Yes, he’s likely done it more than anyone else — because he’s been on the Court longer than anyone else. But is what he does different from others?

This question seems especially important to anyone calling for the impeachment of Justice Thomas—and especially if that anyone is Representative Ocasio-Cortez. Remember, she said we couldn’t fairly regulate TikTok because we weren’t equally regulating domestic technology platforms. Ok, but then, shouldn’t we know whether Justice Thomas’ behavior is exceptional before we demand he be removed from office? Shouldn’t we know whether he is the only Justice who failed to report transportation, or who (allegedly) stayed at venues owned by a corporation, or who accepted the gift of accommodations at privileged venues? And if his behavior is similar to the behavior of other Justices, should they all be impeached as well?

This is what felt weird to me about ProPublica’s article initially. I love ProPublica. It has become an essential part of investigative journalism in America today. But this article just seemed premature. It did a powerful job reporting on Justice Thomas. And he made a mistake, in my view, in not responding in advance to their questions. But having established a pattern of behavior with him, it seemed essential to an argument criticizing him to consider how common his behavior is among the others. Is he doing what they all do, if for a longer period of time because he’s a more senior Justice? Or is his behavior the exception, which rightly triggers criticism and perhaps a new rule?

I have no idea of the ordinary practice of Justices. No doubt, they’re drawn to private vacations with friends because of the complexity of hanging out in public. Most live cloistered lives, if only to avoid conflicts or praise in public. (Justice Kennedy would regularly teach in Salzburg, Austria, in part to have a place where he could be invisible.) We don’t want Justices who constantly court public favor or attention, yet that leaves few places for Justices to live where attention can be avoided.

At a minimum, it now seems incumbent upon the Court to provide a more complete accounting, if only to help place Thomas’ behavior in context: Is Thomas’ behavior normal or not? And if it is normal, then that should drive us to a more difficult, if less partisan, question: Should this behavior in Justices be allowed? And if allowed, should it in some form be more aggressively regulated?

I don’t know Justice Thomas. I’ve met him just a couple of times, but never for more than a few minutes. I admire the seriousness of his jurisprudence, even if I disagree with much of it. I don’t share his politics at all.

But you don’t have to be on the Right to think this: It does all of us a disservice to so quickly condemn one Justice, when we have no real knowledge about the nature of his error. The important question we should be focusing on is what the practice of the Justices is, and what the rules for Justices should be. If Thomas is an outlier, then we should know that. If he is as they all are, then the problem is not Thomas. The problem then is something much more.

Washington is filled with techniques for the modestly paid to live life as if they were rich. Leadership PACs are the trick for Members of Congress. Set up a PAC designed to give money to fellow Members, and then all activities related to fundraising for that PAC can be paid for by the PAC: Fancy dinners, vacations in luxury resorts, hired cars driving you everywhere, etc. The truth is that Members of Congress are wildly underpaid (or maybe, we get what we pay for). Many must sleep in their own office. Justices on the Supreme Court are paid at the level of mid-tier lawyers at big New York law firms. And when you’re paid less than you think you’re worth, you find ways to justify what most would think corrupt.

The only real solution is to pay all of them more. (Or at least for Members of Congress, to give them a per diem covering food and lodging for their time in session). Yet we’re not going to do that anytime soon. So in the meantime, we live with these sorts of compromises, some more vicious (Leadership PACs) than others (vacations with friends).

If we’re to address these corruptions for real, in a way that could actually solve the problems they create rather than simply scoring cheap political points, we need to stop pretending that the problem is individual. It is not. It is institutional. The corruptions that are destroying our government are woven into the systems of our government. It is these systems that must change if we’re to have institutions we can trust.

Lessig

law professor, activist.