Brooke Gladstone: Welcome to On the Media's midweek podcast. I'm Brooke Gladstone. Big Supreme Court news this week. On Monday, it ruled that Trump is absolutely immune from prosecution for any conduct "involving his discussions with Justice Department officials" such as Jeffrey Clark accused in the words of a DC bar attorney of attempting a justice department coup in support of Trump's false election fraud claims.

Brooke Gladstone: It ruled also that Trump is presumed immune from prosecution for pressuring then Vice President Mike Pence to overturn the election on January 6th, 2021 because it "involved official conduct" and that the government would have to prove that prosecuting Trump for this wouldn't intrude on the authority and functions of the executive branch. Public opinion of the Supreme Court has fallen to historic loads.

Brooke Gladstone: Last summer, a Pew Research Center poll found that only 44% of Americans now view the court favorably, while a narrow majority, 54%, take a dimmer view. Why? Well, in part, because of its decisions and the queasy feeling that it is corrupt case in point. Last month, Clarence Thomas acknowledged several luxury trips that were gifted to him by billionaire Harlan Crow. The pair's financial ties had long been public knowledge, thanks to a bombshell report by ProPublica in 2023.

News clip: For years, Justice Clarence Thomas has secretly accepted luxury gifts from a GOP mega-donor, Harlan Crow.

News clip: He took these trips to places like New Zealand, Indonesia on private yachts, private jets.

News clip: A $500,000 trip to Indonesia in one year.

News clip: Many of these trips went undisclosed on Thomas's ethics filing despite that being required by law.

Brooke Gladstone: Clarence Thomas has also reported accepting gifts, in 2002, $1,200 worth of tires from an Omaha businessman, a Bible once owned by the abolitionist Frederick Douglass, which Thomas valued at $19,000, and a bust of President Lincoln valued at $15,000. It is the unreported larges that is illegal. To Corey Robin, journalist, professor, and author of The Enigma of Clarence Thomas, none of this is surprising. When I spoke to him last year, he noted that corruption is far more amorphous and pernicious than a simple quid pro quo.

Corey Robin: The way corruption often happens is that you have men of wealth and men of power who are part of a fraternity. They exchange words. They exchange ideas. They gain each other's respect and trust. Thomas is a particularly important person in that fraternity because he really believes in the worthiness and the legitimacy in the standing and in the stature of those men of wealth. He wants those men of wealth to play more of a role in our society, so he takes their words very, very seriously. The problem here is that, Thomas not only doesn't really hide from that, he's created an entire jurisprudence that justifies that.

Brooke Gladstone: These are men who already see pretty much eye-to-eye on the broad questions, right?

Corey Robin: Absolutely.

Brooke Gladstone: Thomas, you say, is someone who believes in the moral authority of rich people and businessmen, which is quite interesting because Thomas's upbringing was not one of wealth and ease. You would think that maybe he would see a moral authority perhaps in poverty.

Corey Robin: Not at all. It's a very good question. One of the most important people in Thomas's life was his grandfather, Myers Anderson, whom he came to live with when he was six years old. Thomas had lived for his first six years in tremendous poverty. Myers Anderson owned his own business delivering wood, then coal, and then finally oil to members of the Black community in Savannah.

Corey Robin: Thomas' grandfather was able to build a solid middle-class home for Clarence Thomas and his brother, put them through private schools, and eventually amass a bit of property, and become a landlord. When Thomas thinks of wealth, he really thinks of people like Myers Anderson. In other words, they began dirt poor. I think Myers Anderson was maybe one or two generations removed from slavery himself, but they were able to build an institution that protected the members of the Black community that came within its ambit.

Corey Robin: In a 1987 speech at a libertarian think tank in San Francisco, Clarence Thomas really set out his views about wealth and American politics. The center character was his grandfather. Thomas's critique and attack on American liberalism was that it viewed men like his grandfather with scorn. He still has in his mind this solid man of discipline, of limited wealth, who created a protective institution in which someone like Clarence Thomas could not only survive but eventually thrive.

Brooke Gladstone: You wrote that in the '60s and '70s, progressive lawmakers treated the freedom of political speech a sacrosanct and spent decades building legal protections around it. In that, Thomas saw a chance to apply those same legal protections to business activities.

Corey Robin: Exactly. In the 1960s and in the 1950s, the 1970s, the Supreme Court and liberals came to a settlement. Anything that the government did in terms of economic regulations, laws about business, and all the rest of it, the Supreme Court would essentially give the executive branch and the legislature a pretty free hand. The idea being that these were legislative and political activities that did not rise to the level of constitutional scrutiny.

Corey Robin: On the other hand, there was a sphere of activity that really did deserve constitutional protection. The heart of those activities, the palladium of liberty, as it was called, was the freedom of speech, that words are our most intimate expression of who we are. We reveal ourselves as individuals, as citizens through our speech. So sacred is that activity that we have to do everything we can in our society to protect it from the regulation, repression, and constriction of the government and of the state, hence, the First Amendment.

Corey Robin: Conservatives looked at that settlement and they thought to themselves, "This really puts us in a bind," because it means the business community can be regulated, strangled, constricted in all sorts of ways, and the Constitution has nothing to say about it. What are we going to do? The innovation of the conservative movement in the 1970s, and Thomas articulates this very clearly in this 1987 speech, is that if we can reimagine the activity of the businessman, the activity of the banker not as economic activity, but as speech, perhaps, that activity will then ascend in the moral imagination of America and ascend in its constitutional status becoming something deserving of the protection of the Supreme Court. Where they begin this process is with advertising.

Corey Robin: Advertising, of course, is a form of speech. It involves words and images. When I was a kid, Mobil, the oil company would take out a quarter-page ad on the op-ed page. It was a learned exegesis of the value of fossil fuels. The question is, is that an advertisement, or is that political speech? Conservatives made the case, and the court eventually came around to this position that that kind of advertising is in fact political speech. That was like the Trojan Horse. They started moving out from there to all different kinds of other things.

Corey Robin: If we can jump ahead 30 years, we had that case coming out of Colorado of the wedding cakemaker. The wedding cakemaker did not want to make cakes for gay couples, and that was primarily a religious freedom case. Thomas and Gorsuch wrote another opinion saying, "In addition to violating religious freedom, this violated the free speech of the cakemaker because making a cake is an artistic form of expression."

Brooke Gladstone: You note that Elena Kagan recognized the dangers of this position in her dissent for Masterpiece Cakeshop versus Colorado Civil Rights Commission. She said that the First Amendment was being weaponized.

Corey Robin: What she went on to say in that dissent of her is, "Let's think about this. What part of the economy does not involve speech? You can't fire someone without either putting it into writing or saying to them you are fired. In fact, all of American business activity operates on the basis of written contracts." Kagan was saying, "Look, what's going on here? They're taking bit by bit pieces of the economy enveloping them in the fact that they come as speech acts, and then having done that saying, now, they all have to come up under the scrutiny of the First Amendment."

Brooke Gladstone: That under this approach, you suggest the constitutional and civilizational order of the new deal could have been overturned.

Corey Robin: Exactly, because going back to that 1987 speech that Thomas gives, Thomas was talking about these mid-century liberals. He had people like John Kenneth Galbraith in mind. What Thomas claimed was that they viewed money as really in bad form, you could say. There was something unseemly about it. Instead, the people that they valued, these liberals, according to Thomas, were what Thomas called the idealistic professions, journalists, professors, lawyers. Thomas describes them as people who make their living by producing words. There's something about speech that is elevated in the mind of the liberal. This is really the original cultural war between the right and the left, really a civilizational struggle over the status of the man of words and the man of money. Thomas saw it as his project to remoralize the businessman and the banker to give them not just constitutional status but cultural status.

Brooke Gladstone: What might have been in Kagan's mind when she made that observation was the 1976 case Buckley v. Valeo. That's a landmark case that ruled that limitations on campaign contributions are a legitimate means of eliminating the "reality or appearance of corruption in the electoral process". Thomas has spent decades successfully chipping away at this.

Corey Robin: Exactly. There's this famous Wallace Stevens poem where he says, "Money is a kind of poetry." and Thomas takes that very seriously. When we make a donation to a candidate, we're not simply assisting their campaign. We're expressing our values. Thomas runs with that fact because he says, "In modern politics, we're always doing this." Most American citizens, when they try to express their opinions, in addition to voting, they have to speak through a medium.

Corey Robin: You have a lot of small-dollar donors who give their money to various campaigns in the hopes that, speaking through that medium, their message will get out, and Thomas says, "That is the nature of democracy. That's why money is speech." Thomas acknowledges that, in American democracy, these campaigns are expensive. He says quite directly that costly campaigns require big donors. This is in McConnell v. Federal Election Commission, which was a case in 2003. He says, "The only effect that the immense aggregations of wealth will have on an election is that they might be used to fund communications to convince voters to select certain candidates over others."

Brooke Gladstone: Duh.

Corey Robin: "Corporations," he goes on to say, "on behalf of their shareholders, will be able to convince voters of the correctness of their ideas." He doesn't hide this anywhere. This isn't tucked in a footnote somewhere. This is a Supreme Court opinion. He is providing a roadmap here about why wealthy people, like everybody else, will seek to speak through their donations to convince candidates to take their positions and then, ultimately, to have those positions prevail in American government.

Brooke Gladstone: You say that for too long, progressives have fought a losing battle to strengthen campaign finance laws, claiming that money isn't speech, arguing that the Roberts Court and Citizens United are solely to blame, but that ship, you say, had already long sailed. What is the actual issue at hand?

Corey Robin: If we go back to that Buckley v. Valeo decision, right there in that statement, which was co-authored by William Brennan and Thurgood Marshall, the two great liberal justices of the second half of the 20th century, they accepted the position that money is speech. That is in that decision. For instance, when a campaign spends money, in that decision, the court rules those expenditures cannot be limited because, if you were to limit those expenditures, you are essentially limiting the speech of a candidate or of a campaign.

Corey Robin: One-half of the political process that involves money, namely campaign expenditures, is completely off-limits from government regulation. There is another sentence in that opinion. It says, "If you are going to limit," and now, we're talking about campaign contributions, and as you said earlier, you can limit contributions for the sake of protecting against the stench, and taint, and appearance of corruption. What you cannot do is to limit campaign contributions for the sake of equalizing speech. If you're doing it to try to level the playing field, uh-uh, that violates the spirit of the First Amendment.

Corey Robin: We have there in the "Money is speech" on the one hand, and then, on the other hand, the statement that you cannot regulate money for the sake of equalizing speech. That has been the settlement upon which liberals have been trying to construct a campaign finance regime that would protect democracy for money and failing to do so. I think really requires us, perhaps, to rethink that approach.

Brooke Gladstone: Have at it, Corey.

Corey Robin: [laughs] I think the problem comes in that question about equality, which everybody on the court from the liberals to conservatives took off the table because, if money is speech, then there is no way that the voices of those of us who are small donors, the individual voices, will ever be the equivalent of the voice of Harlan Crow. The real issue is the distribution of money in the economy.

Brooke Gladstone: That's a really long and rocky road.

Corey Robin: It certainly is. However, it's a road that has been trodden many a time before going back to the foundation of the American republic, people like Noah Webster, who gave us our dictionary. We're very alert to the problem of concentrations of wealth. It would be essentially impossible to have a republic or a democracy when there are concentrations of wealth.

Corey Robin: Over the course of the 20th century, we didn't do a great job, but we did a decent job in leveling those concentrations such that the distance between the poorest person in America and the wealthiest person was imaginable, let's say. It was a span that one could imagine. Today, that distance is unimaginable, and we come back to this question of money and speech. If Noah Webster could say, "We're never going to have a democracy if some people have a lot more money than others and a lot more wealth and property--

Brooke Gladstone: He said that, "Without equal distribution of wealth and power, liberty expires."

Corey Robin: Exactly. No freedom unless there is equal freedom for all. This Harlan Crow scandal has really opened up. It's not just how much money wealthy people have. It's how much money is required for them to have the access. I think this is an opportunity not to have the same old discussion about campaign finance reform.

Brooke Gladstone: That at least is possible in order to reduce the astronomical distance between the rich and poor would require the sorts of regulations that would probably be impossible now because they would be seen as impinging on the speech of business.

Corey Robin: Yes, I agree. That's exactly what needs to be taken on. If you can point out that, in a way, Clarence Thomas and the right have charted our course for us when they claimed that money was speech. If that is true, you cannot have a democracy in the political sphere unless you democratize the distribution of money in the economic sphere. When we engage in questions of distribution in the economic sphere, when we are battling over things like the minimum wage and all these other things, we're not just dealing with economic questions. These are cultural questions. These are, who gets to talk in our society. We do have a very sophisticated discourse, for instance, around the question of race and whose voices get heard in the media. The one thing we have not really had a reckoning on that question of who gets to speak and who gets heard is the question of money.

Brooke Gladstone: In the fallout from the ProPublica report, progressives have called for a hearing regarding Thomas's actions, maybe even his impeachment. What's your take on that?

Corey Robin: I don't think it'll go anywhere. From the very beginning, the man had the taint of illegality. Almost everybody who has studied this issue knows that he committed perjury before the senate when testifying about Anita Hill. That, in the end, didn't do anything to affect his career on the court. In a few years, he will be the longest-serving justice in American history. These kinds of allegations and charges don't really make a dent in him because he now has, at least, four brethren on the court who are willing to side with him. His power only grows.

Brooke Gladstone: This friendship between Clarence Thomas and Harlan Crow necessarily implies that rich people are heard more than poor people.

Corey Robin: We have a tradition of one person, one vote, and the premise of that tradition is that nobody is worth more than anybody else. That was a long and hard-fought battle fought through questions of slavery, fought through the question of the denial of the vote to women, and so on. We won that battle. The most grievous assault and undoing of that battle has been, I would argue, these decisions about the value of the man of money that he is in fact worth more not just in the economic sphere but in the political sphere. That has been the work of Clarence Thomas. If we hope to have any kind of a democracy, that work has to be undone.

Brooke Gladstone: Corey, thank you very much.

Corey Robin: Thank you.

Brooke Gladstone: Corey Robin is a political theorist and journalist. He is the author of The Enigma of Clarence Thomas. Thanks for listening to the midweek podcast. Tune in to the big show on Friday for a real patriotic experience. If you haven't already, would you leave us a review on your podcast app? I'm Brooke Gladstone.

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