What Is Corruption? (with Alex Aronson)

“The presently-composed Supreme Court presents a crisis of democracy."

Corruption, as far as the law goes, is narrowly defined. There has to be some kind of quid pro quo. Politician X has something of value—like, say, the power to install some rando as the U.S. Senator from Illinois, or to grant a presidential pardon to a co-conspirator—and he exchanges that something for something else: cash, usually. Rod Blagojevich went to prison for doing the former; Donald Trump (and Rudy Giuliani) may one day go to prison for doing the latter. (That Trump pardoned Blagojevich is like a Möbius Strip of shady dealings.)

That’s not the sort of tit-for-tat corruption we’ve recently seen on the Supreme Court. Clarence Thomas didn’t trade something of value to Harlan Crow in exchange for the yacht trip, the tuition payments for his relative, the redoubt in the Adirondacks, the jaunt to the Bohemian Grove, or his mom’s new kitchen appliances. Sam Alito didn’t trade something of value to Paul Singer in exchange for the Alaskan fishing adventure, or the private jet ride to whisk him there. Brett Kavanaugh didn’t trade something of value to [insert name of mystery benefactor here] in exchange for the down payment on his house or the balances on his credit cards being paid off—at least, not that we know of.

“It gets to this question of what is corruption, right?” says Alex Aronson, the former chief counsel to Senator Sheldon Whitehouse and my guest on today’s PREVAIL podcast. “And again, it comes back to the Court. And this has been a bipartisan issue with the Court that has, across party lines, defined corruption so narrowly. . . In the legal context, corruption is quid pro quo corruption. Like, here’s a bag of money, you go do this bad act. But we know from just, like, being people in the world that that’s not the end of it, right? Corruption can look like a lot of things. When we have, you know, billionaires providing luxury lifestyles to nominal public officials like Supreme Court Justices. . . you can understand how that provides an incentive, it provides a reward structure, to continue to deliver results that those big money donors want.”

You can understand it, I can understand it; we might even say that any unbiased and reasonable person would understand it. Despite Alito’s indignant claims to the contrary in his embarrassing Wall Street Journal op-ed, an “unbiased and reasonable person who is aware of all relevant facts” would absolutely suspect that there was something fishy going on regarding his relationship with his billionaire angling companion—and I’m not just talking about the salmon they reeled in.

Happily, there are laws that prevent the sort of corruption-that-isn’t-technically-corruption practiced by Clarence Thomas and Sam Alito. The Ethics in Government Act of 1978, which requires mandatory financial disclosures of public officials, remains on the books. And those two jurists seem to have run afoul of it by failing to disclose, especially, the free PJ rides they enjoyed.

“There’s really no argument to made that [Thomas and Alito] had any business withholding the private jet travel,” Aronson explains. “Because the personal hospitality exemption . . . really only extends—and you can read it in the statute—to food, lodging, and entertainment. It does not extend to transportation. And so this gets at this really bad faith and dishonest argument that Justice Alito put forth in the pages of the Wall Street Journal to pre-but [ProPublica], where he makes the farcical claim that a plane could fall within the definition of personal hospitality because it’s a ‘facility’—because we so commonly refer to our flights on ‘facilities.’”

However entertaining it may have been for Alito to eschew the indignities of commercial airline travel—it is beneath the station of a fancy Supreme Court Justice to change planes at LAX!—and hop a ride on some rich libertarian’s Airbus, he went somewhere on that “facility,” somewhere that was a destination, and therefore, it was transportation, not entertainment. The letter and the spirit of the law were violated.

Certain former presidents that come to mind took advantage of an old DOJ memo that opined that sitting presidents could not be indicted. I ask Aronson: Are SCOTUS Justices similarly protected, or can they be arrested like everyone else?

“They can be arrested like everyone else,” he says. “And I think there’s a real strong case to be made that the Justice Department, based on the facts as we know them, should at least investigate, and perhaps pursue at least civil penalties against, these two Justices.”

The corruption we’ve seen from Thomas and Alito is breathtakingly audacious. Any reasonable person will agree that they appear to have exploited their office for personal benefit. And, if that’s not bad enough, their legal decisions are garbage. Moscow Never Sleeps put it best in his 2020 PREVAIL piece on how to fix the Supreme Court:

Clarence Thomas was a troglodyte long before people started paying his wife to cheer him on. In fact, he is quite possibly the most consistent jurist in the history of the Court: he always votes for the cops against the suspect, for the wealthy against the employee, for the Republican political machine against the disenfranchised voter, and for the church against taxpayers who don’t want to support parochial schools. (About the only surprise to come from three decades of Justice Thomas’s black-and-white judicial worldview is that he proves that there really is such a thing as antidisestablishmentarianism.)

As a jurist, Alito is just as lousy if not worse. Between the crap jurisprudence and the stinking corruption, these two chuds are unworthy of our trust or our respect—and yet John Roberts, ostensibly the grown-up in the room, is miffed that public opinion of his Court is in the toilet. He’s like that parent who refuses to acknowledge that it’s his kids who have done something wrong.

“It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” the Chief Justice wrote at the end of his awful decision to ix-nay Biden’s student loan forgiveness plan. “We have employed the traditional tools of judicial decisionmaking in doing so. Reasonable minds may disagree with our analysis—in fact, at least three do,” he continued, referring to the three dissenting jurists. “We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”

Whatever you say, Johnny. The harm is coming from inside the house. The public disparages the Supreme Court with good reason: because it is basically a fully owned subsidiary of Leonard Leo & Friends, because Clarence and Sam comport themselves like corrupt medieval archbishops, and because the rightwing majority’s rotten decisions have stripped away the hard-fought rights of Americans to, among other things, access healthcare, protect themselves from anti-LGBTQ discrimination, and vote fairly. As it now stands, SCOTUS is teetering on the verge of illegitimacy. And whatever fairy tale Roberts might tell himself, that is not the fault of Kagan, Sotomayor, or Jackson.

“We’re in a crisis,” Aronson tells me. “The presently-composed Supreme Court presents a crisis of democracy. And we need an appropriate and proportionate answer to that from political leaders that believe in democracy.”

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LISTEN TO THE PODCAST

S5 E18: What Is Corruption? (with Alex Aronson)

Greg Olear talks to Alex Aronson, the former chief counsel to Sen. Sheldon Whitehouse who advised on the Supreme Court confirmation hearings of Justices Brett Kavanaugh and Amy Coney Barrett, about SCOTUS corruption, what constitutes “entertainment” for Sam Alito, John Roberts and the role of the Chief Justice, Leonard Leo, and what can be done about a judiciary that wants to end American democracy. Plus: Ronnie’s song.

Follow Alex:
https://twitter.com/alexaronson

Read his work at Slate:
https://slate.com/author/alex-aronson

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Photo credit: Carol Highsmith. Interior of the Supreme Court.