May 10, 2023 -- Article published in the Albany Times Union
Commentary: High Court gifts? No problem — if you believe Citizens United
According to conservative justices, a payment in exchange for a “favor to be named later” is just fine.
Joshua Pepper
May 10, 2023
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In the wake of revelations that one Supreme Court justice accepted lucrative gifts from a billionaire and another sold a vacation home to a lawyer whose firm argues multiple cases before the high court, Washington is buzzing with criticism of top jurists.
Sen. Richard Durbin invited Chief Justice John Roberts to testify before the Judiciary Committee, and Justice Roberts’ declination of that invitation will only strengthen the calls to crack down on the Supreme Court.
But the court may have a deeper problem.
As we learned in such cases as Citizens United, the conservative bloc on the Supreme Court does not view corruption in the same way liberals do. The court’s majority said that with respect to campaign expenditures, the interest in preventing corruption was “limited to quid pro quo corruption.” The court went on to denigrate the notion that “the appearance of influence or access” would be a problem worth preventing. In other words, only a payment directly in exchange for a defined official act constitutes corruption. A payment in exchange for a “favor to be named later,” according to the conservatives, is not corrupt at all.
Roberts displayed this attitude in his declination of Sen. Durbin’s invitation to testify before the Senate Judiciary Committee. Although he stated that he was “respectfully” declining to testify, he appended only a nonbinding statement of ethical standards, to which, according to the chief justice, all “current members” of the court claim to adhere. Of course, with no enforcement mechanism, there is no way to know whether all of the current members even adhere to their own professed standard. But the chief justice still insists that his “Nothing to see here” attitude should prevail.
In the context of the conservative bloc’s narrow definition of corruption, though, it is easy to see why the conservatives on the court will not respond to any of the outcries: They do not see a problem. If a payment for a “favor to be named later” is not corrupt, then where is the corruption in Harlan Crow’s generosity to Justice Clarence Thomas? Why would it matter whether Justice Neil Gorsuch sold his fishing cabin to a Greenberg Traurig lawyer, whose firm argues a great many cases before the court? Or whether Justice Samuel Alito was influenced by his “friendship” with conservative activists who may have had advance notice of the decision in the Dobbs decision overturning Roe v. Wade?
If “Be my friend” is merely normal politics, then of course the justices see themselves as having done nothing wrong, and thus they see no problem to be addressed.
As long as the justices cling to their narrow definition of corruption, nothing will change at the court. Justices will continue to accept lavish gifts from people with business before the court, and they will continue to insist that such gifts are mere “friendship.”
Joshua Pepper, a former deputy commissioner and counsel to the state Office of Mental Health and former assistant attorney general, is now in private practice.