A Different Take on Justice Clarence Thomas and His Very Rich Friend

If you are one of the nine Supreme Court Justices you have reached the pinnacle of the American legal system. In fact, it’s fair to argue that a Justice serving for decades has a more profound influence on American life than any other individual. More than a Representative or a Senator, perhaps more than a President, especially considering that any elected officeholder, unlike a Justice, is constrained by the wishes of those who elect them and those who contribute to their election campaigns.

I’ve always been a “fan” of the Supreme Court. It’s my favorite branch, because the Justices are generally brilliant thinkers and often extremely fine writers with sharp wits. And they are free of pressure from the electorate and from donors.

That said, over the past decade I’ve been more often dismayed rather than delighted by Supreme Court decisions. As for Justice Thomas, I cannot recall a decision where I’ve been on his “side.” Moreover, his opinions and concurrences and dissents are the ones I find most retrograde to my own views.

But that’s irrelevant to my main point, which is this: Supreme Court Justices are paid a salary of $300,000, which is absurdly low compared to the pinnacle of the private legal sector. To augment their salaries, they write books, they teach (teaching compensation is limited), and accept/encourage their spouses to earn income often based on the Justices’ social capital.

The Justices are rich by most typical measures; most of them are millionaires. But they are not typical people. I’d prefer that we pay the Justices a sufficient amount of money so they did not have to supplement their earnings through books, teaching, and leveraging their spouses. I’d rather they focus on their awesome responsibilities as Justices.

As for Justice Thomas’s very rich friend, it is inevitable that the Justices, as celebrities wielding immense power, are going to be sought after as friends by other people with power, which, in America, more often than not means those who are very rich. Let’s face it, a Justice rates to be an extremely desirable friend, not least of all due to their immense cache. And while I’m sure the Justices have “regular” friends who predate their prominence, their post-prominence friends will most likely be other prominent people.

But there’s an imbalance in these friendships. The Justices can’t “keep up” with the lifestyle of their rich friends. So if they’re invited on their friends’ vacations, it’s the friends’ jet they’ll fly on, the friends’ home they’ll stay at and so forth. Disclosure of these in-kind gifts ought to be sufficient to satisfy us.

The Justices, like everyone else, have families they want to provide for to the best of their ability. So when a rich friend offers to buy and fix up a mother’s house or pay tuition for a young relative, Justice Thomas’s acceptance of these gifts is understandable. Consider that private school tuition might be $50,000 or more, which would consume almost a third of a Justice’s after tax salary of $300,000.

Thomas’s low salary creates a natural and foreseeable conflict between the perception of impropriety vs. helping his family. Should there have been better disclosure, even if it was not then required by the regulations? I think so. Although on the other hand a Justice may consider that he already discloses more than any private citizen and that he is already under intense scrutiny. So I can understand a temptation to keep his private life as private as possible, up to the limits of the law.

What’s true for Supreme Court Justices is true in the other branches of federal and local government and of senior agency positions. It’s a fact that people who are qualified to be at the higher reaches of government, federal and local, are paid salaries that are generally much lower than they could earn in the private sector.

For example, the position of leading the National Institute of Health with a $50 billion budget, almost 20,000 employees, and a vital role in national health policy and research remains unfilled. The salary is $200,000, far less than many of the NIH researchers make. Certainly far less than any senior executive of any important pharmaceutical company. Other gating issues include severe investment restrictions, microscopic examination of your past, and notoriety–––no matter how you decide something, there will be some people who will loudly and coarsely hate you.

The bottom line is that the inadequate pay makes it difficult to attract the most talented people to serve. The pay scale also makes it easier for the already wealthy to serve and they do, disproportionately, especially in Congress. This does not necessarily match up with attracting the most talented people, nor is it a “good look” for a country founded on the goal of equality of opportunity.

I think the controversy of Justice Thomas receiving support from his very rich friend should serve primarily as a wake-up call to address a deeply flawed public service compensation system. If we want better and cleaner government we need to pay our public servants much more than we do now.

And when we think about Justice Thomas, haven’t we effectively “put a stumbling block in front of a blind man,” that wonderful biblical prohibition that urges us not to place someone in a situation, in this case a conflict between helping his family vs. the appearance of impropriety, where they can’t help but be fallible, one way or another.