The U.S. should implement the same reforms to its high court that it has called for in other nations, a judicial reform scholar suggests
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Applying the U.S.’s blueprints for judicial reforms, which scholarship shows helps nations prosper and democratize, to its own high court could clean up its mess.
Since April, news accounts have revealed that Thomas has received close to $2 million from real estate magnate Harlan Crow. The gifts include a $500,000 trip to Indonesia, a $500,000 donation to the Liberty Consulting firm owned by his wife (which paid her a $120,000 salary), $2,250-a-night trips for 20 years to Crow’s Topridge resort, $350,000 total for five trips in Crow’s private jet (at $70,000 each), $150,000 for tuition fees of Thomas’ nephew and $93,000 to buy his house above market value. This does not include an extended cruise in New Zealand (for which there is no estimate) nor the payments from conservative judicial activist Leonard Leo to Clarence Thomas’s wife for consulting work, specifying that her name be left off billing paperwork.
The monetary value of these undeclared gifts towers over bribes given to judges in other countries. Data on bribes to judges are obviously hard to come by, given the need for secrecy in corruption cases. One exception however comes from Peru’s dictator Alberto Fujimori, whose corrupt schemes in the 1990s with his secret-police chief, Vladimiro Montesinos, were documented by Montesinos’ surprising practice of asking for written receipts for bribes and videotaping his illicit negotiations. There, one Supreme Court justice was offered a bribe of $10,000 per month, along with medical care, to help swing an election. Even throwing in eye surgery promised to the judge, that amount pales against what Thomas has received in undeclared gifts. And that is in comparison to bribes offered to a corrupt judge in Peru under ones of our era’s most brazen dictatorships. (To be precise, Peru was the sixth worst in terms of documented state embezzlement behind Indonesia’s Suharto, the Philippines’ Marcos, Zaire’s Mobutu, Nigeria’s Abacha and Serbia’s Milošević).
This large corruption scandal in the U.S. is ironic for a country that has for decades been financially supporting judicial reforms abroad. In my work, I have built a world database of 4,568 judicial reforms implemented by 500 foreign aid agencies since 1996. I find that $5.4 billion has been spent on these reforms since 1996. The largest donors are USAID, the U.S. foreign aid agency, and the World Bank, where the U.S. has the largest voting power. These judicial reforms aim at improving the quality, speed and access of the court systems, and they usually contain anticorruption components with integrity training and monitoring of judges and court officials.
The premise of these measures is that the rule of law is an important pre-condition for prosperity and the fight against corruption. Indeed, I find using rigorous statistical analysis that these reforms have had large positive effects on economies and on the reduction of corruption by executive branches. Roughly, they cause a 22 percent increase in economic efficiency, and a 10 percent increase in societal expectations that the executive will obey courts and the laws. In other words, the rule of law is a pillar of economic growth and a check on power.
I am working on one of these judicial reforms in Kenya, measures supported financially by the World Bank to the tune of $120 million. The World Bank and the Kenyan judiciary have developed a systematic data collection effort within the courts to understand their inner workings and measure performance, as well as identify problems. Additional data is being collected among court users to expose corruption scandals. Using these data, we have been developing an algorithm that is able to detect issues in courts and to monitor judges, which delivers strong positive effects as shown in our still on-going randomized control trial. The World Bank and the Kenyan judiciary are thus pushing courts in a new era of data access, transparency and scientific experimentation.
These same standards are not being applied in the U.S. The most recent set of regulations for Supreme Court justices, passed quietly this past March, allows for gifts that are personal in nature to be accepted without disclosure (within certain limitations). Thus, the Supreme Court is going in the opposite direction as the Kenyan Judiciary, toward less complete data, less transparency and more opacity. In this regard, Clarence Thomas may be in the clear for his paid vacations (not for anything else, such as the private jets, tuition fees, and donations to his wife), but the problem runs deeper.
Opacity and corruption have severe consequences. My work already shows that the lack of judicial reforms abroad, such as those advocated by the U.S., have negative consequences on the economy and corruption of the elites. On a more conceptual level, the fundamental purpose of an unbiased legal system is to level the playing field: the rules are the same for all, nobody is above the law, and everybody has the opportunity to flourish. When the legal system is biased towards wealthy individuals, the playing field tilts in their favor, and the incentives to innovate and grow vanish for the rest of the population. Inequality grows in a vicious circle towards more tyranny of the wealthiest. This is what is at stake here. The U.S. should take a long look in the mirror and implement the judicial reforms it has championed overseas at home on its high court.
This is an opinion and analysis article, and the views expressed by the author or authors are not necessarily those of Scientific American.
ABOUT THE AUTHOR(S)
Matthieu Chemin is an associate professor of economics at McGill University, Canada and the founder of Elimu, an organization that researches economic development in Kenya.
