In addition to going on expensive vacations with wealthy right-wing donors who have interests before the Supreme Court, Justice Clarence Thomas has, ProPublica reported last week, secretly participated in fundraising efforts for organizations bankrolled by the Koch network, the right-wing advocacy organization founded by the billionaire brothers Charles and the late David Koch. Thomas was “brought in to speak,” staffers told ProPublica, “in the hopes that such access would encourage donors to continue giving.”

Although the failure to disclose the trip to Palm Springs, California, on the Kochs’ dime might have violated federal law, it’s hardly the only example of Thomas hiding financial relationships with wealthy conservatives. Harlan Crow, the right-wing billionaire who frequently brings Thomas on luxury vacations—although by no means the only right-wing billionaire who has done so—also owns the land Thomas’s mother currently lives on, and has paid private-school tuition for Thomas’s nephew, whom Thomas is raising. Thomas is not the sole right-wing justice benefiting from his cozy relationships with affluent ideologues; Justice Samuel Alito has also enjoyed the generosity of such men. Thomas is also implacably opposed to financial-disclosure laws that illuminate connections between the wealthy and the powerful, and the rest of the Court’s conservatives are inching closer to his view.

If you want to understand the brazen indifference to ethics standards exhibited here, it helps to go back to Robert Bork.

Bork, the father of the legal doctrine of originalism, was supposed to be a Supreme Court justice. Originalism promises to interpret the Constitution as it was understood at the time its provisions were adopted, but in practice it is most often a semi-spiritual, therapeutic approach in which conservatives look back at the Founders and see themselves, affirming as their original intent whatever the popular opinions on the contemporary right happen to be. Originalists mock “living constitutionalism,” or the idea that the Constitution should be interpreted in light of modern circumstances, but their own constitutionalism is simply undead.  

[Adam Serwer: What was Clarence Thomas thinking?]

President Ronald Reagan nominated Bork for the high court in 1987, but instead of becoming a justice, he became a martyr. Bork’s nomination was defeated because of his opposition to laws that bar discrimination on the basis of race and sex and his opposition to legal abortion, and because he was a willing participant in Richard Nixon’s corrupt schemes to shield his own criminal acts.

The Bork nomination is an early example of something we’ve seen often in the Trump years—an underlying agreement about the basic facts that is obscured by heated disagreement over whether those facts are good. No one disputes that Bork described the Civil Rights Act’s non-discrimination requirement as based on a “principle of unsurpassed ugliness,” there is only disagreement over whether the federal government can outlaw Jim Crow businesses.

Conservatives frequently invoke Bork’s name as a representation of Democratic ruthlessness and partisanship, but the most vicious critiques of Bork were accurate, if uncharitable, and the qualities that liberals found objectionable were precisely those that endeared him to the conservative legal movement. Indeed, with six right-wing ideologues on the Court, Republicans are now demanding that the justices impose on the country the very unpopular version of America that Bork wanted to live in.

The Bork nomination went down. It was not the first, but the 11th, Supreme Court nomination to fail, and unlike Barack Obama’s 2016 nominee, Merrick Garland, Bork actually got a hearing and a vote. The important event, however, is what came next: The nomination of Anthony Kennedy, who had once compared the Roe v. Wade decision finding a constitutional right to an abortion to the Dred Scott decision, which upheld slavery. Kennedy was confirmed almost unanimously and took the seat that was supposed to go to Bork.

By 1991, as the legal reporter Jeffrey Toobin wrote in his book The Nine, when Thomas was confirmed to replace retiring Justice Thurgood Marshall, eight of the nine justices had been appointed by Republicans and the lone Democratic appointed justice was Byron White, who himself opposed abortion. With those numbers, the Roe precedent was supposed to be living on borrowed time. Indeed, the Supreme Court was about to take up another abortion case, Planned Parenthood v. Casey—one in which the future justice and then–federal judge Samuel Alito had argued that Roe should be overturned—that would provide a perfect opportunity to destroy Roe.

Instead, it would take another 30 years to overturn, because three of the recent Republican appointees—Kennedy, Sandra Day O’Connor, and David Souter—joined Harry Blackmun and John Paul Stevens in preserving the right to an abortion. This is partly why the conservative myth that Bork was mistreated endures—had Bork been on the bench instead of Kennedy, the right would have won this particular fight decades ago, and many others besides.

The conservative legal movement needed judicial nominees to be more partisan, more ideological, and more tightly controlled. That is the context in which the regular stories of the conservative justices’ closeness to wealthy right-wing donors and partisan organizations should be understood. You could call this the conservative legal movement’s Good Behavior Project: One aspect is making sure that nominees are sufficiently ideological not to diverge from the party line, or to do so rarely. The Federalist Society’s role in nominating judges resolves this pipeline problem. Another aspect is ensuring that they do not grow more ideologically idiosyncratic with age, something that can happen to appointees from either party.

Social ties between justices and partisan actors are not novel, of course. During the era of Franklin D. Roosevelt—who made eight appointments over his four terms—many of the justices were very close socially to partisan actors with whom they shared an ideologically liberal outlook.

So it shouldn't surprise us that the justices are political actors, or that their rulings often find pretexts to favor their personal beliefs. The revelation that they profit off their jobs and hobnob with the wealthy is both shocking and banal. The asymmetry is that conservatives built an effective infrastructure for reinforcing and rewarding that sort of partisan loyalty, approaching the courts (as FDR did) as a question of political power and getting the right people in the right places at the right time, while liberals continue to subscribe to babble about the majesty and impartiality of the law. It is one thing to engage in such rhetoric for political purposes as the conservative legal movement does, while actually building political power, it is quite another to act as though the law and Constitution are genuinely self-enforcing while doing little to enforce them.

[From the September 2019 issue: Deconstructing Clarence Thomas]

The justices should be held accountable for breaking the rules or the law when they do so, and for the many ways they are making American life more dangerous, less democratic, and less free, while hiding their ideological crusade behind a facade of neutrality. But you cannot fault conservative legal movement for doing everything it can to build the world they want to live in. You can fault their opposition for not doing the same. The recent reporting on the justices tight social and financial relationships with right-wing billionaires is valuable—and threatening to their agenda—because it exposes the justices’ deceptions and self-deceptions about how the system really works.

By financing the justices’ lavish lifestyles and forging close social ties between donors with interests before the Court and the justices themselves, donors with interests before the Court and social ties to the justices can apply pressure that ensures the justices avoid making decisions that could alienate them from the luxury and companionship to which they have become accustomed, without ever making specific demands. This assures Good Behavior.

I am not saying that the justices reach opinions they believe are wrong—but that in most cases, they would not even allow themselves to consider the alternative. An act as direct as a bribe risks the possibility of the target growing a conscience, because there is no way to rationalize the act. Not wanting to be ostracized from one’s social circle, one’s friends and political allies—that is the kind of thing that keeps justices from even considering changing their minds. The motivation feels internal rather than external, and therefore does not feel like corruption in the way that accepting a wad of cash would.

As the justices themselves have ruled—unanimously, I might add—the absence of explicit this-for-that exchanges of money for “official acts” means that such leverage does not count as bribery. This is one of the ironies of the modern era: There was certainly more individual corruption in the past, more suitcases of cash changing hands, more personal profiteering. There is more institutional corruption now—explicit ideological rejection of duty toward segments of the public that are not part of one’s faction. A democratic society can survive, even thrive, with the former. The latter is potentially terminal.