How Clarence Thomas’s Good Behavior Project Transforms the Legal Landscape

In addition to going on expensive vacations with wealthy right-wing donors who have interests before the Supreme Court, Justice Clarence Thomas has, as reported by ProPublica, secretly participated in fundraising efforts for organizations bankrolled by the Koch network. These organizations have been founded by the billionaire brothers Charles and the late David Koch. According to staffers, Thomas was “brought in to speak” in order to encourage donors to continue giving.

Although Thomas’s failure to disclose his trip to Palm Springs, California, funded by the Kochs, may have violated federal law, it is not the only example of Thomas hiding financial relationships with wealthy conservatives. Notably, right-wing billionaire Harlan Crow, who frequently takes Thomas on luxury vacations, also owns the land where Thomas’s mother currently lives and has paid for Thomas’s nephew’s private-school tuition. Thomas is not the only right-wing justice benefiting from these relationships, as Justice Samuel Alito has also experienced similar generosity from wealthy individuals. Additionally, Thomas strongly opposes financial-disclosure laws that shed light on connections between the wealthy and the powerful, and other conservative justices on the Court are leaning more towards his viewpoint.

To fully grasp the brazen indifference to ethics standards demonstrated here, one must understand the influence of Robert Bork. Bork, the pioneer of the legal doctrine of originalism, was nominated by President Ronald Reagan for the Supreme Court in 1987. However, his confirmation was defeated due to his opposition to laws prohibiting discrimination based on race and sex, his anti-abortion stance, and his involvement in Richard Nixon’s corrupt schemes.

The Bork nomination illustrated an interesting phenomenon often witnessed during the Trump era—a shared understanding of the basic facts underlying a situation, with heated disagreements on whether those facts are positive or negative. While Bork’s description of the non-discrimination requirement in the Civil Rights Act as based on an “unsurpassed ugliness” is widely accepted, disagreement arises over the government’s authority to outlaw discriminatory practices. Conservatives frequently criticize the treatment of Bork as evidence of Democratic ruthlessness and partisanship. However, the criticisms of Bork were, for the most part, accurate and reflected the qualities that made him attractive to the conservative legal movement. Now, with six conservative justices on the Court, Republicans are pushing for the imposition of an unpopular conservative vision upon the nation—an agenda closely aligned with Bork’s ideals.

The Bork nomination was not the first, but the eleventh, Supreme Court nomination failure. Unlike Merrick Garland, President Obama’s nominee in 2016 who did not receive a hearing or a vote, Bork did go through the confirmation process. However, what followed the Bork nomination was far more significant: the nomination of Anthony Kennedy, who had compared the Roe v. Wade decision on abortion rights to the Dred Scott decision on slavery. Kennedy was confirmed with overwhelming support and took the place that should have belonged to Bork.

By 1991, when Thomas was confirmed to replace Justice Thurgood Marshall, eight out of the nine justices were appointed by Republicans. The lone Democratic-appointed justice, Byron White, also opposed abortion. With such numbers, it was expected that the Roe precedent would be short-lived. Yet, the Supreme Court’s conservative tilt did not lead to the immediate overturning of Roe. Justices such as Kennedy, Sandra Day O’Connor, and David Souter, along with Harry Blackmun and John Paul Stevens, helped maintain the right to an abortion. This explains why the conservative myth about the mistreatment of Bork continues to persist. If Bork had been on the bench instead of Kennedy, the right-wing would have won the battle to overturn Roe many years ago.

The conservative legal movement recognized the need for more partisan and tightly controlled judicial nominees to fulfill its agenda. This context highlights the importance of the recent reports on the close social and financial relationships between conservative justices and right-wing billionaires. To ensure loyalty and prevent any divergence from their agenda, donors with interests before the Court establish close ties and finance the justices’ opulent lifestyles. These donors can exert pressure without making explicit demands, ensuring the justices align with their financial and social interests. This system of maintaining Good Behavior resembles a conservative legal movement project.

It is crucial to note that social connections between justices and partisan actors are not new. During Franklin D. Roosevelt’s presidency, when he made eight Supreme Court appointments, the justices had close social ties to partisan actors who shared their liberal ideology. Therefore, the political nature of justices and their rulings should not come as a surprise. However, the recent revelations about their financial relationships and social ties to right-wing billionaires expose the justices’ deceptions about the operation of the system.

The justices must be held accountable for any violation of rules or laws and for the ways they contribute to a more dangerous, less democratic, and less free America while hiding behind a facade of neutrality. However, it is essential to acknowledge that the conservative legal movement is doing everything it can to shape the world according to its vision. On the other hand, their opposition has not matched the same level of determination. The recent reports on the justices’ relationships with right-wing billionaires pose a threat to the conservative agenda as they expose the justices’ deception and self-deception regarding the functioning of the system.

By financing the lavish lifestyles of the justices and fostering social ties between donors and the justices, these donors with interests before the Court can apply subtle pressure to ensure the justices do not make decisions that jeopardize the luxurious and companionable lives they enjoy. This pressure does not involve explicit demands, as it is more effective to avoid the risk of the justices growing a conscience. Justices are deterred from considering alternative viewpoints because they fear being alienated from their social circles, friends, and political allies. Although their motivation may feel internal rather than external, this process effectively maintains a sense of Good Behavior. While the justices may not deliberately reach opinions they believe are wrong, they often refuse to even consider alternative perspectives. Explicit acts like bribes risk the exposure of corruption, but subtle social pressure prevents justices from exploring alternative viewpoints.

As the justices themselves have ruled unanimously, the absence of explicit this-for-that exchanges…