Joseph R. Noone

 

Justice Clarence Thomas’ defense in response to growing criticism of his acceptance of lavish gifts from a billionaire benefactor over a long period of time is a remarkably weak one given that it is made by a legal scholar holding the most exalted judiciary office in the land.

He simply contends his understanding that the taking of such largesse, however extravagant, is not prohibited as long as the donor in question is not a party to, or does not have an interest in, a particular question being deliberated by the court.

The ideal of the Supreme Court is impartiality. Traditionally, it has been exactly this which has caused the public to afford the members of the court a form of respect not easily or routinely extended to the other branches of government.

Members tend to be identified with notions of fairness, equality, and a justice that is blind. The court has been seen in the public perception as august, its members as having not only the highest competence, but irreproachable character. There is, or was, a sense that they are not only free from partisan factions, but above them; not merely different from politicians, but better.

Regrettably, this image of the court has been somewhat tarnished, to say the least, in recent history. Not only did Roosevelt pack the court with those of his persuasion, but today it is commonplace that a given administration cannot just predict, but virtually guarantee, that its candidate will conform to its stated policy.

Indeed, it might seem that the only thing that cannot be guaranteed is impartiality. This has repercussions of the gravest consequence for the nation.

Of course, absolute impartiality is impossible to attain; people, jurists or others, are the product of their social background, cultural group, economic level, religious formation, values, biases and the like. We commonly adopt the positions of the community to which we belong.

Then there is the complex problem of interpretation, trying to ascertain the intent and meaning of those who wrote at a different time, of a document that emerged from that time, and determining the congruence or lack thereof between that document and a present-day judicial question. There is opinion which coincides with truth, and opinion which violates it.

But the fact that absolute impartiality cannot be achieved does not mean that it should not be pursued. Certainly, it does not mean that it should be ignored or insulted, as Justice Thomas has done. That his very generous donor does not have a particular matter pending before the court does not at all mean that his interest is not represented there, and represented by Justice Thomas.

Consider the hypothetical, but conceivable, question of a case before the court involving unions, a Constitutional question regarding labor relations.

It is highly unlikely that Justice Thomas’ billionaire patron would be a fan of unions. Is it not possible that the learned jurist may have imbibed by association the posture of his – apparently very close – friend, and that he might, by a kind of osmotic susceptibility, as it were, come to favor the views of someone with whom agreement can be so richly rewarding?

Justice Thomas should resign immediately. Chief Justice John Roberts, who is known to be rigorously sensitive about any appearance of partiality, and is distressed about the declining image of the court in public estimation, should strongly urge him to do so.

Rousseau said: “Nothing is more dangerous than the influence of private interests in public affairs.” It all depends on what is meant by influence.

 

Joseph R. Noone is a resident of Lynn.