The quiet justice breaks his silence for a bundle.
As was widely reported last week, HarperCollins bought Supreme Court Justice Clarence Thomas' memoirs for $1.5 million. The papers also noted that this is the largest advance ever paid a sitting Supreme Court justice and that the agreement with this most conservative justice on the court coincidentally came from News Corp., the leviathan media empire owned by the conservative Rupert Murdoch.
But there's been hardly a murmur about the fact that Thomas will be earning this extraordinary sum of money simply because he holds public office, whereas when HarperCollins offered $4.5 million for Newt Gingrich's memoirs in 1994, an ethics inquiry found that the massive sum created "the impression of exploiting one's office for personal gain." There's been little outcry over the fact that the reason Thomas is usually considered the most intriguing Supreme Court justice is that he refuses to participate in any way in the public life of the court (he sits silently, eyes closed, through most oral arguments) and that he alone among the nine justices has been accused of sexually harassing a subordinate.
The defenders of Thomas' humongo advance contend that he can avoid any appearance of impropriety or conflict by simply recusing himself from any case in which Murdoch, Fox, the First Amendment, copyright law, libel, or any communications or media issues pertaining to them are ever implicated. Meaning that the chances of future 4-4 decisions by the court (the legal equivalent of a rainout) are greatly increased. All so Thomas can write his book.
But the most maddening part of Clarence Thomas' sweetheart deal is that it allows him to continue to do precisely what he's been doing as a justice for a decade: hide from any meaningful public debate or assessment. Supreme Court justices already lead secret, unscrutinized lives. They control 100 percent of their media access. They alone determine what's written about them and where. They make sure that everything they do as individuals and a court is shrouded in complete secrecy. And Thomas has always been the staunchest adherent to that credo, giving speeches only to groups comprised of fans or boosters.
Thomas has now pierced that great black veil of secrecy, but only just enough to cash in. He has chosen to put himself in the public eye but to immunize himself from any kind of publicity that might upset or embarrass him. Thomas has already announced, for instance, according to the New York Times, that he will simply not appear on any TV show "unsympathetic" to his conservative views, which category he defines (with keen legal insight) as anything that isn't Fox News, with maybe a Barbara Walters caveat built in for extra flexibility. The man entrusted with the fate of abortion rights and the future of affirmative action is too scared of little Katie Couric to do a morning show. In theory, the quid pro quo for an enormous book agreement is that the writer exposes himself to hard questions and public discussion, yet this complete and paranoid control over any promotional appearances, he claims, is being exercised solely to preserve "the dignity of the court."
Although Thomas is severely limiting his public exposure by declining virtually any unfavorable publicity, he has compensated HarperCollins by promising, according to the Times, "strong support" for his book from conservative commentators, especially from his buddy Rush Limbaugh. (Thomas performed Limbaugh's third marriage and never tires of listening to the conservative pundit.) According to Thomas, Limbaugh will read sections of the book on his radio program, literary merit notwithstanding. If HarperCollins can just get Ann Coulter to write about it and Ted Olson to somehow plug it during an oral argument, Thomas is guaranteed a best seller without the agony of a single book review. This isn't a book tour. It's a Federalist Society pep rally.
Other sitting Supreme Court justices have recently published books. But by all accounts, neither Chief Justice William H. Rehnquist nor Sandra Day O'Connor received such gargantuan advances. At one level, Thomas' book is radical in that he is not planning to hide his personal views and beliefs behind scholarly history books (à la Rehnquist) or behind nostalgic childhood reminiscences (O'Connor). According to those who've read his proposal, Thomas' book—described as a Horatio Alger rags-to-riches morality tale—will reveal at least something of his personal and political opinions. But then he is still planning on hiding, just in the cushiony bosom of the conservative media bubble.
Why is it that the same justices who refuse to give interviews, carefully vet all speaking appearances, and forbid cameras in the Supreme Court will joyfully go on television to hawk their books? As the book deals pile up, the message is increasingly clear: The court is the last American bastion of gentility and decorum; the work done there is complicated, mystical, and holy. But when there's a buck to be made, off a famous name or a racy story, then all bets are off.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Justice Clarence Thomas on Slate's Table of Contents © Jeffrey Markowitz/Corbis Sygma.