Could Clarence Thomas possibly be “the best and most incorruptible Supreme Court justice in U.S. history”? 

Let’s just say I have my doubts while others are sure of it.

A piece recently published in the estimable Volokh Conspiracy blog calls Thomas “the very best justice out of 116 to have ever served on the U.S. Supreme Court” because he has “a clear body of rules, which he consistently follows in case after case.” Although “he almost never follows precedent, [Thomas] always follows the original public meaning of the text of the Constitution.”

And that, the piece declares, makes Thomas both “quite simply a genius” and “incorruptible in every sense of that word.” Although inflexibility “in case after case” is not usually considered a desirable quality among judges, I do not question the assessment of Thomas’s exceptional intellect. 

The justice’s ethics, on the other hand, are quite another story.

Regarding Thomas’s decades-long non-disclosure of lavish gifts, forgiven loans, favorable financial arrangements and luxury vacations, well, it argues that wasn’t the justice’s fault. Congress drove him to it. 

“Justice Thomas’s salary is $285,400 per year,” it explains. “If Congress had adjusted for inflation . . . Justice Thomas would be being paid $500,000 a year, and he would not need to rely as much as he has on gifts from wealthy friends.”

In other words, it isn’t corruption if you could really use the money. Had Congress only ponied up an additional $215,000 every year, Thomas could have chartered his own private jet flights and Indonesian cruise.

The piece also says that resentful Democrats, unhappy since the end of the Warren Court in 1969, have been “punishing Republican justices and judges by not raising their salaries to keep pace with inflation.” They have apparently been willing to subject even the Democratic justices to penurious $285,000 wages, made even worse because they lack billionaire friends to help ease the pain and deprivation. 

Republicans had more important priorities than raising judicial salaries during the years when they controlled both Congress and the presidency, such as cutting taxes for hospitable billionaires and attempting to deprive millions of low-income Americans of medical insurance.

In any case, the very phrase “most incorruptible” implies that incorruptibility is relative, with some justices more open to temptation than others, and none as resistant as Thomas. If so, each of the other justices, now sitting, or ever in history, has been at least a little bit corruptible, which is something I would avoid telling the ever-petulant Justice Samuel Alito to his face. 

I deeply value the author Steven Calabresi as my friend and colleague at Northwestern, but his singular concept of corruption inexplicably seems to begin and end with outright bribery. Thomas would never “bend the law” to please “the Koch brothers, Texas billionaire Harlan Crow, or anyone else,” including his wife Ginni, Calabresi says while ignoring other ethics issues such as financial disclosure and conflicts of interest.

Even if Thomas “had every right to accept gifts from wealthy friends,” as the piece insists, he had no right to keep them secret in violation of the Ethics in Government Act, or to sit in Capitol insurrection cases despite his wife’s deep involvement in the so-called “Stop the Steal” effort.

Still, one must give Calabresi much credit for creativity. As a great admirer of Thomas, he has admirably endeavored to restore and enhance the justice’s reputation, even though his argument that Thomas is incorruptible is circular and self-refuting. 

Perhaps it would be a bit more convincing recast in verse, inspired by the work of the late British poet Humbert Wolfe:

None but a crank would dare begrudge

Vacations for a favored judge.

Nor has there been a quid pro quo,

Say Charles Koch and Harlan Crow.

You just can’t bribe with gift or promise,

Supreme Court Justice Clarence Thomas.

Yet knowing what he’s sure to do

Unbribed, there’s no reason to.

I also have a rhyming counterpoint:

Want a scoop? Here’s the skinny:

The provocateur was Ginni.

Recuse from cases? He won’t try it.

Lest she rouse another riot.

The least corrupt, and also best?

Such virtues! Oh, who would have guessed?

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law and the coauthor of “Judicial Conduct and Ethics” (5^th edition).