Thumbs on the Scale

By Thomas Coffin

Much has been in the news lately regarding the Supreme Court, a theoretically co-equal branch with Congress and the Executive branches (but the one with the deciding final say on the Constitution and thus the law governing the actions of the other two.)

It seems the highest Court in the land does not have a code of ethics to guide its conduct and does not want one (unlike lower federal courts, which have a judicial code of ethics, The Code of Conduct for United States Judges.)  The Supreme Court makes its own rules, but the problem is that the cupboard of those rules is mostly empty (we can at least hope that if the spouse of a justice is a party to a case before the court, the justice would not participate in deciding the case.)

Thus “we the people”, who believe we are a nation governed by what is called “the rule of law”, are being confronted, shockingly, by the news that a number of the justices have been the beneficiaries of unreported substantial financial “gifts” by extremely wealthy and/or powerful individuals or entities with vital interests in cases decided by the Supreme Court in which these justices participated notwithstanding such blatantly compromising transactions.

A recent article in the Ohio Capital Journal (4/26/2023) summarizes some of the lavish largesse that has been distributed across the ideological spectrum. The practice is endemic and reaches at times six and seven figures. Those justices at the receiving end engage in the pretext that what they are gifted does not influence their decisions. The common refrain, if any of them bother to respond to criticism, is that the donors are close friends or acquaintances and they never discuss business on the paid vacations or yacht cruises, or trips abroad, etc. 

This is the typical, trite claim that there is no “quid pro quo”— i.e., there was no contractual agreement that the recipient was required to deliver anything of value to the donor. Justice Roberts gave his blessing to Citizens United by observing that magnanimous corporate donations to the campaign coffers of politicians were protected “speech”, not attempts to corruptly influence their support, as there was no quid pro quo.

And in case this ruling escaped your notice, in 2016 the Court overturned the conviction of Bob McDonnell, the former governor of Virginia who received $175,000 in gifts from a CEO of a corporation who desired to obtain scientific research on a nutritional supplement made from a compound found in tobacco. Finding little interest from the scientific community, the CEO gifted a Rolex, money for McDonnell’s daughter’s wedding, designer clothing, and some other gratuities. The governor subsequently directed his donor to the Medical College of Virginia and the University of Virginia School of Medicine and hosted a luncheon meeting with University officials and the CEO so he could have access and pitch his product. It didn’t work, and the Governor was indicted and convicted by a jury on federal bribery charges.

The Supreme Court reversed the conviction, ruling that the Governor had not committed an “official act” in return for the gifts. Justice Roberts wrote the opinion on behalf of the Court. In essence, this was the quid pro quo test of corruption, ignoring access as a “quo” for the “quid.” 

I mention this ruling to illustrate the gravity of dark money in our alleged democratic system of governance. The quid pro quo test is enabling corruption, not deterring it. Neither the purchasers nor the objects of political or judicial assets are naive about the process. There will rarely, if ever, be evidence of such tit for tat arrangements. Those involved are cunning, smart, and not at all ignorant about the legal issues and how to circumvent around them. 

Another question is whether the value of access itself is a “quo”? How many ordinary members of the public have the means or wealth to influence the decisions of our legislators and judges by purchasing houses for them, inviting them, free of charge, on yachts and jets, or rubbing up to them during hosted hunting and fishing trips, private retreats and weddings?  Money buys access, so why isn’t access itself the object?  What is the price tag for one on one conversations with those who ultimately decide the most important issues facing our society today (gun regulations, civil rights, poverty, equitable taxation of the wealthy, affirmative action, voting rights, energy production, education, social welfare benefits, and the tug of war between oligarchy and democracy)?

Perhaps the most important question is — how can the rule of law survive if the people lose confidence in the integrity of the process by which the laws are enforced or decided by those entrusted with that solemn duty?  The appearance of Justice is the prime ingredient in the fabric that holds a society intact that is governed by the law. If we permit the privileged few to cheat by putting their thumbs on the scales of Justice, we have destroyed that fabric.

Every jurist and participant in our Democratic system knows full well the bright line that must not be crossed and the obligation to avoid even the appearance of impropriety. It comes with the territory.

This is an existential challenge. We must reform our institutions to instill ethics and integrity within them and remove the thumbs from the scales. 

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Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020 and at Politics and Pie in October, 2022.  He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School. Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children.  The Blackberry Pie Society is pleased to include a collection of his essays on our website.  

We will post them as they become available.

posted 6.30.2023