If all that’s true, why do we keep seeing instances of rightwing billionaires reaching out to Supreme Court justices? Why did the Koch brothers regularly invite Justices Antonin Scalia and Clarence Thomas to their mansions, resorts, and private events?
The implication in the media, when commenting on ProPublica’s blockbuster reporting, is that they’re all lying and there actually is either a quid pro quo going on, or at least a wink-and-a-nod.
But that answer is too facile to explain the behavior of these men (it’s always men, it seems: Elena Kagan famously turned down bagels and lox from a politically active acquaintance, saying she didn’t want to be in their debt in even the smallest way).
They control an entire one-third branch of our federal government. They’re not going to debase themselves like that, swapping explicit gifts for explicit votes. (Well, maybe one out of nine might. But two out of nine? That’s statistically and historically unlikely.)
And the private-sector kings and barons of banking, real estate, and industry? These men, who control billions of dollars, are not going to lower themselves to making simple bribes.
They’re not going to risk their lifestyles — second-country passports, private jets and yachts, mansions in multiple nations, and complete authority over vast empires of wealth and the power associated with it — with a penny-ante bribe for a vote once in a while.
A simpler and, I think, more cogent argument to explain this behavior is that these billionaires are fitting their target justices with golden handcuffs.
And they must feel the need to do so because history shows that justices — once they have lifetime tenure and are otherwise not answerable to anybody, including voters, lobbyists, or special interests — tend to become more liberal the longer they’re on the bench.
Back in 1999, political scientists Andrew Martin and Kevin Quinn created the Martin-Quinn Score, a way of measuring the ideology and ideological changes over time of Supreme Court justices.
Looking at datasets over much of the past century, researchers using the Martin-Quinn Score found that over time conservative justices consistently moved out of the rigid rightwing ideological space they occupied when put on the Court. They inevitably shifted to a more centrist or liberal position.
As Oliver Roeder wrote for a piece at 538 titled Supreme Court Justices Get More Liberal As They Get Older:
“A typical justice nominated by a Republican president starts out at age 50 as an Antonin Scalia and retires at age 80 as an Anthony Kennedy.”
Republican appointees Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, and David Souter were all considered solid conservatives when appointed to the bench, but all joined the Court’s liberal faction for many or even a majority of their lifetime decisions.
All of those justices, probably not coincidentally, joined the Court before the modern era of the Federalist Society and its encouraging rightwing billionaires to “make friends” with conservative justices. (Leonard Leo was part of Alito’s fishing trip with Singer, and is in the famous picture from one of Crow’s retreats with Clarence and Ginni Thomas.)
Interestingly, the Martin-Quinn scores show that while conservative justices leave behind their hard-right ideology over time, liberal justices tend to stay right where they were when confirmed. What explains this phenomenon?
I believe it’s that once justices have lifetime appointments and no longer must adhere to an ideologically defined ladder to climb to their position, they finally feel comfortable to do what’s right, not just what the wealthy party donors or Republican presidents and senators who gave them the job care about.
After all, America was founded as the world’s first major experiment with what political scientists call “liberal” democracy. The Founders and Framers, as I lay out in my new book The Hidden History of American Democracy: Rediscovering Humanity’s Ancient Way of Living, were enthusiastic students of indigenous democracies like the Iroquois Confederacy, seeing in it a form of government where the good of society was consistently held above the greed or desire for power of select individuals.
Thus, one could argue, the core ideal of the American experiment was summarized in the first three words of the Constitution: “We The People.” The first goal of a liberal government like the Founders established was to meet the needs of the greatest number of people while maintaining high levels of personal freedom, and our nation has moved toward that goal in fits and starts — but steadily forward, nonetheless — for over two centuries.
The hardcore conservative worldview, however, rigidly embraces hierarchy, patriarchy, and a society with an elite few at the top and teeming masses of the working poor at the bottom. Anything that might lift those masses up other than “individual initiative” or inheritance — from Social Security to Medicare to unionization to quality free public education — is vigorously opposed by conservatives.
The hard-right conservative/libertarian worldview doesn’t make sense. It doesn’t work in the real world. It’s only an ideology, but it’s the ideology they learned as they climbed up through the generally-white upper-middle-class ranks. An ideology of privilege that’s only rarely contradicted by disaster: most wealthy people die without ever having had a personal experience of poverty or even struggling to pay the bills.
Thus, conservative justices “moving to the left” isn’t really so much of an ideological shift as an abandonment of elite conservative ideology in favor of an independent determination to do what’s best for the nation as a whole. To meet the needs of all Americans, rather than just the elite few who are the focus of conservative ideology.
That’s also why liberal judges’ Martin-Quinn scores almost never move: they were already doing what was best for the country overall, and so felt no need to become ideologues in either direction.
Finally — and to the point of this article — this explains why rightwing billionaires would want to wine and dine conservative Supreme Court justices. When you understand it in this context, it’s as clear as Occam’s Razor.
Nobody in their right mind thinks that Harlan Crow really wanted to get to know Clarence Thomas for his sparkling personality; if Thomas were a bus driver, a physician, or even a District Court judge, Crow would have ignored him. Ditto for Sam Alito and Paul Singer.
But the Supreme Court has the power to mold and shape the law in ways that either advantage or disadvantage billionaires, from tax policy to corporate governance to social issues that comport with the hierarchical conservative worldview.
Of course Crow, Koch, Singer — and the other billionaires we will inevitably find involved with this — would like to keep justices, who prioritized wealth when first put on the bench, in the same ideologically conservative lane throughout their tenure.
From this perspective, the efforts by these and other rightwing billionaires who have shared in wining and dining conservative Supreme Court justices over the past two decades are not so much directed at specific cases they may have before the Court but, rather, are designed to keep those justices “in the fold.”
Student debt, for example, is coming up next. To screw the students Joe Biden is trying to help will require a strong enough class identification to ignore the desperate situation many Americans find themselves in today. “Don’t think about those struggling people; instead remember the private jet rides and that $200,000 fishing trip!”
If this theory is right, these billionaires are making this investment of time and money to prevent conservative Supreme Court justices from becoming David Souters or Anthony Kennedys: two men who joined the Court before this “befriending” program was organized by Leonard Leo, et al — and who thus felt free to abandon conservative dogma once they got lifetime tenure.
Just consider how clearly this is illustrated by the past 70 years of American history. The story of Supreme Court justices from previous generations makes this argument overwhelmingly vivid.
When I was a child, Earl Warren — who Dwight Eisenhower called “that dumb sonofabitch” — became a huge wakeup call to America’s rightwingers. As I noted a few months ago, Republican President Dwight Eisenhower once remarked, referring to his appointees Earl Warren and William Brennan:
“I have made two mistakes, and they are both sitting on the Supreme Court.”
In the election of 1952, three-term California Governor Earl Warren put his name into nomination for president at the Republican National Convention. Four years earlier, in the presidential race of 1948, Warren had been Thomas Dewey’s vice-presidential running mate (they lost to Truman), and so was nationally known as a solid, reliably conservative Republican.
He’d been a forceful law-and-order keep-the-Blacks-down District Attorney for Alameda county, then California’s hard-assed Attorney General (1938), then such a popular governor (1942, 1946, 1950) that California’s then-Senator Richard Nixon endorsed him for president on the first ballot.
Thus, when Eisenhower won the nomination and the White House, his first appointment to the Supreme Court went, in 1953, to Earl Warren.
Warren’s credentials as a conservative Republican were impeccable, and Eisenhower and his Vice President, Richard Nixon, both celebrated when Warren stepped down from his governorship to join the Court. Eisenhower accurately called him, “a man of broad experience, professional competence, and with an unimpeachable record and reputation for integrity.”
Once on the Court, though, and no longer answerable to the voters or any other political pressure group, Earl Warren felt he could do as his conscience — rather than his party — guided him. His first truly consequential decision as Chief Justice was 1954’s Brown v Board, which outlawed racially segregated public schools.
Furious, oil baron Fred Koch helped the John Birch Society fund “Impeach Earl Warren” billboards across the United States.
But Earl Warren was unfazed. His independence was intact.
Brown was followed by his pulling together Court majorities to:
— legalize birth control and recognize the never-before defined “right to privacy” in the Griswold decision,
— eliminate prayer in public schools (Engel v Vitale),
— define the right to refuse to incriminate oneself (Miranda),
— put into law the right to have a free defense lawyer (Gideon v Wainwright),
— strike down laws against interracial marriage (Loving v Virginia),
— and end a form of extreme Southern gerrymandering by requiring all congressional and state legislative districts be of the same population (“one man, one vote” in Reynolds v Sims and Wesbury v Sanders).
Earl Warren, in other words, began doing what he thought was the right thing for the nation as a whole, rather than just doing what Eisenhower’s morbidly rich Republican donors wanted and, frankly, expected.
The same happened with William J. Brennan, a conservative and staunch Catholic who was confirmed by every Republican in the Senate except one. Brennan had never been a politician, but his judicial record made Eisenhower certain he’d rule along conservative lines.
His record was so conservative, in fact, that the National Liberal League, then the nation’s leading progressive group, vigorously opposed his nomination. Instead, Brennan became one of the most outspoken liberals in the history of the Court, once he got lifetime tenure.
And it kept happening.
Billionaire Republican donors were burned again when Jerry Ford nominated John Paul Stevens to the Court in 1975.
Stevens was a lifelong Republican; was functionally the lead prosecutor for the Greenberg Commission which removed two corrupt justices from the Illinois Supreme Court; voted as an Appeals Court judge to reinstate capital punishment and against affirmative action; and was seen as so business-friendly that the former president of Bell & Howell, then-Republican US Senator Charles H. Percy, proudly put his name into nomination for the high court.
But once Stevens experienced the “independent spirit” of lifetime tenure that Hamilton referenced in Federalist 78, this hard-core conservative Republican became one of the Court’s most outspoken liberals.
His dissent in Citizens United is must-reading today as he predicted all the corruption we’ve since seen; he wrote the opinion in Wallace v. Jaffree striking down school prayer; and he voted to legalize pornography under the rubric of free speech and the First Amendment.
He also wrote the majority opinion in Chevron v NRDC which established the Chevron deference which — as I noted last month — the current Supreme Court appears prepared to strike down as part of the billionaire campaign against regulatory agencies.
Stevens authored the main dissent in Scalia’s “guns for everybody” Heller decision, and his dissent in 2000 Bush v Gore — where Clarence Thomas’s tie-breaking vote handed the presidency to George W. Bush, even though Al Gore had won a half-million more votes and the Florida Supreme Court-mandated recount was in mid-stride — was absolutely scathing. He wrote:
“Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
Finally, David Souter was nominated by George HW Bush. He’d been a law-and-order prosecutor who was “noted for his tough sentencing,” and rose to Attorney General for the solid red State of New Hampshire.
That state’s Republican governor, John Sununu, assured Bush that Souter would be a “home run” for conservatives. It didn’t turn out that way, with his pro-choice vote in Planned Parenthood v Casey and his joining Stevens in opposing the Court’s handing the 2000 election to George W. Bush.
Republicans — and the rightwing billionaires who fund them — learned their lesson, by this theory. Never again would they allow a rightwing justice to stray beyond the rigid ideological boundaries set at that justices’ confirmation.
But they didn’t need to use threats or bribes or any sort of even remotely explicit quid pro quo.
Instead, they’d use peer/friend pressure — one of the single most powerful social and emotional forces to which humans are vulnerable — to control their future behavior.
The carrot instead of the stick. The velvet glove instead of the steel fist. The experience of breathtaking wealth and the warm embrace of powerful people.
Leonard Leo and his billionaire funders have put an enormous and long-term effort into this project, and it appears to be working. For the first time in 240 years of American history, none of the conservative justices in the past 20 years have significantly strayed from their ideological lane.
This is also why it’s a safe bet that — as ProPublica and other reporting groups dig into the lives of the other conservatives on the Court — we’ll similarly find outreach from other rightwing billionaires and CEOs of giant corporations to the rest of them, all “purely in the spirit of friendship.”
And 100% of those “friends,” if my theory is right, will be billionaires who are heavily involved in Republican ideology and politics, and regularly have business or causes they care about before the court. Just like Koch, Crow, and Singer.
This isn’t a hobby and these men aren’t friends. This is the way leaders in a cult behave to keep their most valuable cult members within the fold.
“Make them feel special.”
Thomas and Alito can continue to protest that their “good friends” aren’t trying to influence decisions in any specific case, publishing editorials in The Wall Street Journal and pathetically pleading their cases before rightwing groups.
But they have no defense against the argument that a principle goal of the rightwing billionaires and the Federalist Society’s constant attention to these justices is to quite simply keep them focused on the concerns and needs of the billionaire class and the corporations that made them rich.
To make them feel a stronger affiliation to a class of people they were not born into and could never otherwise aspire to. Because then, no matter the details of the case, they will rule the right way.
After all, if the oligarchs lose their conservative defenders on the Supreme Court, America could revert back to democracy that first and foremost serves the needs of our nation’s working people, like before the Reagan revolution.
The middle-class might recover, raising the cost of labor, and CEOs might have to start paying their income taxes and running their businesses in a way that serves the community above their own greed.
And that, rightwing billionaires will tell you, is something they can never allow to happen.
