This Era of Elite Impunity Must End

White collar greed is a through-line of our biggest problems

“Americans are taught in high school civics classes that our laws are legitimate because they apply to everyone equally,” our Max Moran wrote in The American Prospect on Monday. “This has never been true. But if we even want to pretend that we believe in this ideal, then Congress must immediately investigate Supreme Court Justice Clarence Thomas.”

What is it called when one of the nine most powerful judges in the U.S.—a man whose title is literally Justice—has routinely accepted secret private jet rides and luxury yacht vacations from a billionaire right-wing mega-donor for over two decades? What does it mean that this was not disclosed, in violation of the Ethics in Government Act? If the ruling class wants the public to believe that the rule of law means anything to them, then the answer must be “breaking the law,” necessitating investigations, trials, and professional consequences. 

Legitimacy Needs to Be Earned

One of the most frustrating tendencies we’ve seen in the Biden administration is the prioritization of norms and decorum over the more disruptive, necessary work of rooting out bad actors and harmful precedent set by Trump (and other prior administrations). One can see this in Merrick Garland’s institutionalist approach, in the reappointment of Trump’s Federal Reserve Chair Jerome Powell, and in Biden’s decision to leave Chris Wray at the helm of the FBI and Joseph Cuffari as the Inspector General of Homeland Security, among other problematic personnel choices. 

Whether it’s preserving Supreme Court Justice Clarence Thomas’ right to interpret the law without being accountable to it, or leaving Trump holdovers in positions of power after they were vetted by the most lawless American president the modern era has seen, President Biden and Democratic leadership in Congress have not shown sufficient urgency in condemning and rooting out bad actors, whose continued access to power turns Americans against their government. 

We have long argued that Biden won the presidency through contrasting himself from his predecessor. ”His message in the presidential election was a straightforward contrast between his human decency and Donald Trump’s personal cruelty,” my colleagues wrote last year in Democracy Journal. “That conflict won Biden the White House, but conflict is now noticeably absent from the ‘post-partisan’ story his Administration now tells about itself.” 

Biden cannot avoid conflict and hope to earn people’s trust. A through-line of so much of our work is pointing out where regulators, enforcers, and the president himself could make a tangible difference in re-balancing power in this country by taking on the big fish villains—rich, powerful, avaricious people and corporations—and pointing out the consequences when they fail to do so. 

From the Silicon Valley Bank collapse (regulators rushing to bail out wealthy depositors, while Fed oversight failures enabled the fiasco) to the ecological disaster in East Palestine (enabled by the rapacious greed and negligence of railroad companies like Norfolk Southern, and the lack of stronger rail safety regulations) to the massive con that is crypto and the devastatingly criminal slow-walking of climate change mitigation, there is one profound commonality, and it is this: white-collar greed. 

Now we have evidence that a Supreme Court justice has been living in the lap of luxury for decades, traveling around the world on a billionaire mega-donor’s yacht and private jet, and then returning to the bench to deprive people of reproductive autonomy, among other outrages. It’s corrupt, plain and simple. 

The choice of inaction here would be unavoidably paradoxical: doing nothing about a massive breach of trust in the Supreme Court, for fear that doing something would destroy trust in the Supreme Court. But if the Court’s authority is automatic and absolute, not earned and contingent on fair process, then the Court is a tyrannical institution. As the original American ideal was freedom from tyrannical monarchs, so the public taking action to liberate themselves from the unaccountable Court’s mandates would be fundamentally American.

If our leaders let this be another story of elite impunity—the rich and powerful getting away with just about anything—it will be at their peril. We’re not far from the bottom in terms of public trust in governmental institutions. Public acceptance of an institution as legitimate can only survive the death of its integrity by so long. 

Will Durbin Act?

In the immediate aftermath of ProPublica’s report, our Executive Director Jeff Hauser called for the House of Representatives to draw articles of impeachment against Thomas, and for the Senate Judiciary Committee to “immediately begin extensive investigations into Thomas’ violations of ethics laws and norms as well as the broader collapse of the Supreme Court’s integrity.” 

You’d think that these scandalous revelations might finally compel Congress to admit that Clarence Thomas’ corruption is inexcusable, and to move to impeach him. Yes, he’s gotten away with egregious actions before—including refusing to recuse himself from hearing a case involving his own wife’s complicity in seeking to overturn the 2020 election—but that’s no reason to let these violations slide. Max wrote that what’s different about these allegations is that Thomas “may have somehow managed to knowingly break one of the vanishingly few ethics laws for Supreme Court justices that do exist. These allegations demand an investigation and trial.”

But whether we get that investigation and trial depends in large part on the spine of Sen. Dick Durbin (D-IL), Chair of the Senate Judiciary Committee. Durbin, for his part, seems to be punting responsibility over to Supreme Court Justice John Roberts, arguing that Roberts should spearhead a “thorough and credible investigation” into “what happened with Justice Thomas.” Yes, the Supreme Court should definitely be in charge of investigating one of its own, no conflicts of interest there at all. Let’s especially charge one of the court conservatives with investigating a different court conservative. No reason to ask an independent oversight committee to investigate these abuses, when you could have a longtime colleague do it instead! We all saw how the Federal Reserve handled its own ethics scandal via an internal process, and there’s absolutely no questions left to be answered about that. Surely we can trust an even more accountable institution like the Supreme Court!

In all seriousness, Democrats in Congress cannot let this slide. If they value public trust in the Supreme Court at all, then its “justices” cannot be allowed to get away with taking all-expenses-paid luxury vacations with influential billionaire donors without disclosing them. Frankly, that’s too low of a bar in the first place. If they can’t even clear that, there is simply no reason for the public to have any faith in the judgments that come down from the Court. So it is astounding that there is no guarantee that Congress will take its responsibility to investigate Thomas’s abuses of his position seriously. 

Durbin has said that “if the Court does not resolve this issue on its own, the Committee will consider legislation to resolve it.” We certainly hope that the Committee does more than “consider legislation.” Conducting basic oversight on a co-equal branch of government amidst a major breach of public trust does not require passing any new laws. This is that “checks and balances” thing which Durbin should have learned in 5th grade. Nor would the highly unlikely possibility of SCOTUS conducting an actually serious investigation obviate the need for stronger ethical standards governing SCOTUS. 

Responding to brazen displays of corruption with staid and likely fruitless proceedings is a great way to frustrate the public, and erode people’s trust in their Congressional representatives along with the Supreme Court. With trust in the Supreme Court and trust in Congress reaching all time lows in 2022 since Gallup polling began in 1973 (incidentally, the year of Roe v. Wade), representatives responding to ethics scandals with appropriate seriousness and urgency is all the more important. That is, if they care about having the public’s trust. 

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Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:

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Clarence Thomas reportedly received years of gifts from GOP donor, stirring scandal

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Supreme Court Justice Clarence Thomas took free luxury vacations worth millions from GOP donor, didn’t disclose trips: report

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