Justice Thomas, Conflicts of Interest, and the Supreme Court

We’re thinking that the Supreme Court should schedule a movie night soon. The justices can pop some popcorn, snag some Jujubes, and then sit down to watch our videos on Conflicts of Interest. Supplemented by our Self-serving Bias video, we’d like to think that the jurists might learn a valuable lesson. Our optimism in this regard is tempered by the fact that our earlier blog post on Antonin Scalia and conflicts of interest [https://ethicsunwrapped.utexas.edu/biases-of-a-supreme-court-justice] does not seem to have done the job. So perhaps they should watch our Overconfidence Bias video as well.

Simply put, being a justice on the Supreme Court does not automatically mean that one is supremely impartial. Justices are humans, and all humans are subject to the self-serving bias, which causes us to tend to conclude that what is best for us is also what is best. Therefore, the justices must guard against the impact of conflicts of interest.

In her last years on the Court, Justice Ruth Bader Ginsburg became more than just a jurist. She became an icon, symbolizing, especially for the daughters of progressives, everything that women could become. She was the “Notorious RBG,” glorified in movies and on t-shirts. Ginsburg seemed to relish the attention and happily embraced her role, accepting, for example, an award in 2010 from the Women’s National Democratic Club.

We suggest that if a Supreme Court justice must decide, say, a question of statutory interpretation–where the best evidence is that Congress intended a meaning favorable to conservatives and unfavorable to progressives–that being a celebrated, highly publicized hero to progressives everywhere will make it at least a tad more difficult for that justice to do her duty when deciding the case. It is, as noted, just human nature.

By now, you certainly know where this blog post is going. While there have been many defenses raised on behalf of Justice Clarence Thomas, none of them seem to seriously challenge most of the reported revelations indicating that billionaires (with very clear preferences as to how controversial, high-profile cases should be decided) have found multiple avenues for funneling money to Thomas who has voted with their preferences every time. As summarized by Forbes:

Harlan Crow Trips: ProPublica first reported Thomas has for years accepted trips from GOP megadonor and developer Harlan Crow, including on his private jet and superyacht, without disclosing them on financial disclosures as federal law requires.
Harlan Crow Tuition: ProPublica also reported recently that Crow also paid two years of tuition for Thomas’ grandnephew Mark Martin, whom the justice has custody of, to attend two private schools in the 2000s, which cost $6,000 per month at one of the schools and were similarly not disclosed—even as Thomas did disclose a tuition payment a different friend made years earlier.
Harlan Crow Real Estate: Thomas and his family also sold a string of properties in Savannah, Georgia, to Crow in 2014 without disclosing that as required, ProPublica reports—including the home where his mother still lives—which Crow told the publication he purchased so he could eventually build a museum dedicated to the justice.
Ginni Thomas Conservative Activism: Thomas’ wife, Ginni Thomas, is a right-wing activist, which has raised considerable ethics concerns about overlap between her and her husband’s work—particularly as the New Yorker reported groups she’s been involved with have submitted briefs before the Supreme Court, including a group that has weighed in on the court’s pending case about affirmative action in university admissions.
Ginni Thomas Leonard Leo: Leo, a conservative judicial activist who’s spent billions on efforts to reshape the federal courts, including the Supreme Court, told then-conservative pollster Kellyanne Conway to give Ginni Thomas “another $25k” through a nonprofit group he advises—which then filed a brief with the Supreme Court—but conceal that the payment was for her, the [Washington] Post reports, telling Conway, “No mention of Ginni, of course.”

In sum, whether through Thomas’s wife, Thomas’s mother, Thomas’s grandnephew, or directly to Thomas himself, billionaires with definite agendas regarding a variety of court cases have secretly given Thomas benefits worth hundreds of thousands of dollars. There have been obvious efforts to hide the payments, though there is some question as to whether those efforts violated applicable disclosure rules. Nor is it clear to us whether Thomas should have, had he disclosed these payments, necessarily recused himself from the relevant cases. What is obvious, is that once a justice has accepted hundreds of thousands of dollars of benefits from a person as Thomas did, the justice will feel a natural reluctance to disappoint that person with a vote on an important case.

And Justice Thomas has had company in recent headlines, with Chief Justice Roberts (whose wife made a boatload of money working with important law firms), Justice Gorsuch (who benefited from a real estate sale to a big law firm right after being confirmed), and Justice Sotomayor (who failed to recuse herself from cases involving publishers of books she had written).

To be realistic, we must remember that by the time justices join the Supreme Court, they are adults with their own life experiences, personal political and philosophical views, circles of friends, trusted advisors, dependent relatives, and so on. They have not lived life in a bubble. Nor should we expect them to do so once they join the Court. If all the justices recused themselves from every case in which they had the slightest potential connection to interested parties, there might be no one left to decide the cases.

At the same time, we suggest that it is not too much to ask that the justices step back just a bit from public life. It seems a small sacrifice in exchange for the privilege of holding such a powerful position. Indeed, it seems a necessity if the prestige, honor, and influence of the Court are to be preserved. The people’s respect for the Court is at low ebb.

We urge every justice, not just Justice Thomas, to remember that they, like all human beings, are subject to the self-serving bias and the overconfidence bias, and therefore are vulnerable to conflicts of interest and must be very wary. Justice Scalia laughed off the notion that close personal relationships with litigants appearing before the Court could affect his judgment. That was arrogant and surely wrong.

Harvard Business School psychologist Max Bazerman observes that because of the self-serving bias, “[p]eople tend to confuse what is personally beneficial with what is fair or moral.” If Joe gives us a big chunk of money, it is very difficult for us to see that as a bad thing. But many psychological studies indicate that money has a strong influence on most people, even when they do not realize it. Therefore, it is unsurprising that studies show that CEOs and CFOs are more likely to fudge the numbers if to do so can help them attain a bonus target at year’s end, and that the more money is at stake the more likely they are to fudge. This is neither surprising, nor confined to C-suite executives.

(If you want another example of the self-serving bias, note how outraged progressives are over disclosure of the payments to Justice Thomas contrasted with how much of a nothingburger conservatives think they are.)

Despite the evidence of how impactful the self-serving bias is on people’s moral judgments and actions, because of the overconfidence bias, people also generally believe that they don’t really need to concern themselves with conflicts of interest. Around 80% of people believe that they are above average in terms of morality and 92% of Americans in one poll were satisfied by their moral character.

Therefore, it is unsurprising that studies show that people who recognize that other individuals are influenced by conflicts of interest tend to believe that they themselves are relatively immune.

Other studies show that members of various professions believe that higher ethical standards are needed for members of other professions, but that their profession is doing just fine, thank you very much.

Critically, judges – who have a duty to be impartial and unbiased in their assessments and judgments in court – are similarly vulnerable to these biases. As we noted in our blog post about Justice Scalia:

When it was suggested that Justice Scalia’s going on a hunting expedition with a person heavily involved in a case before the Court might create a conflict of interest, he was simply incredulous that anyone might voice even the slightest concern about his objectivity. His comments, [psychologists] Bazerman and Tenbrunsel have noted, “indicate that he rejects or is unaware of the unambiguous evidence on the psychological aspects of conflicts of interest.”

We urge all nine justices on the Court to be wary of the self-serving bias, the overconfidence bias, and their own resultant vulnerability to conflicts of interest. They should take the evidence into account in determining how to live their lives, whether or not to disclose potential conflicts, and whether to recuse themselves from cases pursuant to 28 U.S.C. Sec. 455. The American people deserve no less.

Sources:

Max H. Bazerman & Ann E. Tenbrunsel, Blind Spots: Why We Fail to Do What’s Right and What to Do About It (2011).

Alison Durkee, “Clarence Thomas: Here Are All the Ethics Scandals Involving the Supreme Court Justice Amid New Revelations,” Forbes, May 5, 2023, at https://www.forbes.com/sites/alisondurkee/2023/05/05/clarence-thomas-here-are-all-the-ethics-scandals-involving-the-supreme-court-justice-amid-new-revelations/?sh=a0609e3ab84a.

Tigran Eldred, “Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases,” Rutgers Law Journal 65: 333 (2012).

Jared Gans, “Conservatives Criticize Liberal Supreme Court Justices for Ethics Issues,” The Hill, May 4, 2023, at https://thehill.com/regulation/court-battles/3988846-conservatives-criticize-liberal-supreme-court-justices-for-ethics-issues/.

Jared Harris & Philip Bromiley, “Incentives to Cheat: The Influence of Executive Compensation and Firm Performance on Financial Misrepresentation,” Organization Science 18(3): 350367 (007).

Brianna Herlihy, “Friend Rips Media’s ‘Despicable’ Effort to ‘smear’ Clarence Thomas for GOP Donors’ Payment to School,” Fox News, May 4, 2023, at https://www.foxnews.com/politics/clarence-thomas-friend-speaks-against-despicable-story-revealing-gop-donor-paid-relatives-tuition.

Marianne Jennings, “Ethics and Investment Management: True Reform,” Financial Analysts Journal 61(3): 45-58 (2005).

Nick Mordowanec, “Conservatives Call Out Sotomayor’s $3M from Publisher Amid Thomas Reports,” Newsweek, May 4, 2023, at https://www.newsweek.com/conservatives-out-sotomayor-3-million-dollar-publisher-thomas-reports-1798460

Ed Pilkington, “Judicial Record Undermines Clarence Thomas Defence in Luxury Gifts Scandal,” The Guardian, Apr. 28, 2023, at https://www.theguardian.com/us-news/2023/apr/20/clarence-thomas-supreme-court-harlan-crow-luxury-gifts.

Corey Robin, “The Clarence Thomas Scandal Is About More than Corruption,” POLITICO, Apr. 18, 2023, at https://www.politico.com/news/magazine/2023/04/18/clarence-thomas-scandal-corruption-00092335.

Michael Steinman et al., “Of Principles and Pens: Attitudes of Medicine House Staff Toward Pharmaceutical Industry Promotions,” American Journal of Medicine 110: 551-557 (2001).

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