What do plutocrats and Supreme Court members get from being friends?
What is a Mafia? At the systemic level, it’s different from other criminal groups. Above all, as Diego Gambetta—the premier scholar of the Mafia—has shown, it’s a network for the exchange of favors and the imposition of obligations in the name of “friendship.” That’s how the crimes get done.
We see this in the first Godfather film, when the mortician Bonasera offers to pay Don Corleone to commit murder; the undertaker wants revenge on the men who beat up his daughter but, in the formal court system, were spared from prison. The Godfather reacts to Bonasera’s offer with dismay—not because of the request for murder, but because of the explicit suggestion of cash payment. “What have I ever done to make you treat me so disrespectfully?” the Godfather asks. “Had you come to me in friendship, then this scum that ruined your daughter would be suffering this very day.”
Friendship? This, not the bureaucratic payment-for-service model that Bonasera expects, is the basis for how Corleone’s world functions. The Godfather agrees to deal with Bonasera’s enemies, but in return for an unspecified future obligation. “Some day, and that day may never come,” he tells Bonasera, “I’ll call upon you to do a service for me.” This is understood to be more ominous and weighty than any monetary debt could be. But as the powerful know, the right to call in a future favor is priceless.
This scene sprang to my mind last month when the billionaire Harlan Crow told The Dallas Morning News that he and Supreme Court Justice Clarence Thomas are “just really friends,” and that friendship alone motivated him to pay hundreds of thousands of dollars for luxury travel enjoyed by Thomas and his wife. (Perhaps the same impulse led him to buy and renovate the home of Thomas’s elderly mother, who continues to live there, as well as to pay the private-school tuition of Thomas’s grandnephew.)
Thomas himself has echoed Crow’s just-friends line, maintaining that nothing is nefarious about his relationship with his benefactor. This is despite Thomas failing to mention any of this expensive largesse in his official financial disclosures over the years. Federal employees are typically subject to rules designed to preserve impartiality and prevent conflicts of interest by tightly limiting the type and value of gifts they may receive from those doing business with them. But the Supreme Court governs itself, and its members are not even subject to the code of conduct for federal judges.
One sign of a failed state is that networks of favors and obligations among friends begin to subsume the formal institutional pathways of power in government. As much as Americans like to complain about bureaucracies, they operate by a set of published rules, and compliance with those rules is supposed to be transparent to the public. Disclosure promotes public confidence. The consent of the governed is obtained through trust that the system is fair and subject to meaningful oversight.
But when elites—both corporate and political—conduct their affairs through “friendly” exchanges of favors and gifts, the result is corruption that can render democracy nonfunctional. Think Boss Tweed and Tammany Hall in mid-19th-century New York, or the Daley Machine in mid-20th-century Chicago. Scaled up to the federal level, this kind of cronyism is extremely dangerous for a system based in the shared public faith that justice is available, impartially, to all.
While there’s no suggestion that any direct quid pro quo occurred between Thomas and his friend, Crow’s firm did have business before the Supreme Court in 2004—a case from which Thomas did not recuse himself. This brings the Thomas-Crow relationship into a gray area in which no overt crime has occurred, but over which hangs a cloud of suggestive obscurity incompatible with democratic legitimacy. When rich businesspeople shower lavish favors on powerful jurists—at a moment when questions of economic inequality, business regulation, and corporate power are among the most divisive matters before the courts—can those jurists credibly say they do no service in return?
Supreme Court justices are paid far better than the average American but are far less wealthy than some of the people who cultivate them as “friends.” In such systems, relatively low-paid government employees lack the financial resources that someone like Crow enjoys, but their public prestige and institutional authority allow them to participate in the informal network of mutual obligations among elites. As Gambetta has pointed out, even people who might seem insignificant can play a vital role in a Mafia-style system. They “may be short of cash but capable of returning valuable favors,” he writes. “Services not for sale elsewhere gain common currency here: votes, … bureaucratic dispensations, … selective privileges of all sorts.”
These favors are the great leveler between the rich and powerful and the network of people who “owe” them. Compared with Don Corleone, Bonasera is an unimportant man, but he’s still of use to the Godfather. (The service ultimately demanded of him was modest: Bonasera’s artistry made the bullet-torn face of Corleone’s son presentable for an open-casket funeral.)
Thomas—a self-described man of “regular stock,” who prefers “the Walmart parking lots to the beaches”—isn’t the only justice who appears to be enmeshed in a network of favors with the rich and powerful. When Neil Gorsuch was nominated to the Supreme Court, he was part owner of a Colorado property that had languished on the market for two years. Shortly after his confirmation, Gorsuch and his co-owners sold it to the chief executive of a law firm with frequent business before the Court. Although Gorsuch declared the amount he earned from the sale on his ethics disclosure form (between $250,001 and $500,000), he notably left blank the name of the buyer. Since then, the law firm has argued at least 22 cases before Gorsuch and his colleagues; in the 12 cases where Gorsuch’s decision is recorded, he decided in favor of the firm’s clients eight times. A coincidence, perhaps. But if it was in any way a “bureaucratic dispensation” in return for taking a justice’s share of a white-elephant property off his hands, the public would never know. That’s the problem. Legitimacy has always been mostly a matter of appearances.
That’s why recent news reports about Chief Justice John Roberts’s wife are also unsettling. According to whistleblower documents obtained by Insider, Jane Roberts earned more than $10 million in commissions as a legal recruiter from 2007 to 2014, with clients including at least one firm that later appeared before her husband. The Supreme Court operates mostly on an honor system—which becomes untenable if lawyers appear to be seeking favor before the high court by enriching its members’ households, and if justices’ spouses can be plausibly accused of monetizing their proximity to official power.
As in the Thomas case, mere “friendship” was once again invoked as a defense. “Friends of John were mostly friends of Jane, and while it certainly did not harm her access to top people to have John as her spouse, I never saw her ‘use’ that inappropriately,” one of Jane Roberts’s former colleagues told Insider. But another colleague saw her actions as corrupt and filed a whistleblower complaint. As part of her sworn testimony in that case, Jane summed up the modus operandi of the Supreme Court and its circle with a line that could have come straight from the Godfather’s lips: “Successful people have successful friends.”