Guest post: An ideologue and a true believer

Originally a comment by Screechy Monkey on Thomas the fundraising draw.

Like you, I don’t think there’s any quid pro quo going on here. Thomas is an ideologue and a true believer.

I think there’s three things going on here:

1) Conservatives want to keep justices like Thomas “in the fold.” There has long been a belief in the conservative legal and political world that Republican appointees like Stevens, O’Connor, Souter, and even Kennedy have gone “soft” and turned into moderates because they were co-opted into the Washington cocktail party circuit, or trying to curry favor with the liberal intelligentsia or whatever. (This used to be called the “Greenhouse Effect,” named for then-NYT legal reporter Linda Greenhouse — the idea being that Republican justices would shy away from conservative rulings so that Greenhouse would say nice things about them.) This is probably nonsense, but many conservatives believe it. So I think a large factor here is wanting to keep the Thomases and Alitos surrounded by a social network of hard-core conservatives, and using luxury vacations and stuff to facilitate that.

2) The opportunity for backchannel legal strategizing. I’m sure these gatherings include late-night conversations over cigars and bourbon in which Thomas comments on which conservative legal goals would probably get five votes on the Court, and which ones aren’t there yet, and what kinds of test cases might win over the swing votes. They may not be explicitly mapping out strategy (“if you bring this kind of challenge, I can get five votes for it, so tee that up this year”) — though I don’t rule it out — but if Thomas/Alito are leaking enough gossip about the justices’ views, it’ll amount to the same thing. Of course, this kind of thing would still go on even if no justices ever attended such events, because there’s an extensive network of SCOTUS clerks who serve two-year posts and then move on to positions at private law firms or conservative legal groups or whatever. The only difference is that instead of Recent Former Thomas Clerk gossiping about what the boss said the other justices think, it’s Thomas directly.

3) The opportunity to fundraise based on access to the justices.

Should this stuff be prohibited, and subject to criminal punishment and/or impeachment? I don’t know. I lean towards no. Just disclose it, and the public know the slimy stuff that’s going on. The justices really do tend to care about their reputations and legacies — there’s a reason Thomas, who generally doesn’t care about drawing criticism, keeps concealing this stuff — so that isn’t nothing. Enough to deter it from continuing? Probably not in the cases of Alito and Thomas. But I can imagine other justices looking at this stuff and thinking that a weekend in Palm Springs isn’t worth the damage.

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