Nelson is a retired American attorney and jurist who served as an associate justice of the Montana Supreme Court from 1993 through 2012, having been appointed to the court by then Republican Governor Marc Racicot.
The opening paragraphs of a September 1, 2023, article in The Atlantic magazine entitled, “What do some Supreme Court justices and physicians have in common,” by Adriane Fugh-Berman, a doctor and professor of pharmacology and physiology at Georgetown University Medical Center, recently caught my eye:
“What do some Supreme Court justices and physicians have in common? Both take gifts from those who stand to profit from their decisions, and both mistakenly think they can’t be swayed by those gifts. Gifts are not only tokens of regard; they are the grease and the glue that help maintain a relationship. That’s not always unhealthy, but it’s important to note that gifts create obligation. The indebtedness of the recipient to the giver is a social norm in all cultures. . .”
The Atlantic author goes on to describe gifts given to doctors by pharma reps that influence the prescribing physician’s choice of drugs.
But, my interest was in her description of lavish “gifts,” “tokens of regard” given to U.S. Supreme Court Justices Clarence Thomas and Samuel Alito (and, in some cases, their wives) totaling hundreds of thousands of dollars. She also sets out the Justices’ implausible excuses and rationalizations for accepting such gifts—along with their incredulous, self-serving “it doesn’t influence me” justifications.
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I certainly agree with the author’s conclusion that:
“. . . the decisions made by Supreme Court justices affect the entire country...those who would sway opinions for their own benefit must be distanced from those who make decisions that affect other people’s lives. The solution is easy, . . . All gifts, no matter how small, should be refused—or, better yet, banned.”
The solution is easy. All gifts, no matter how small, should be refused—or, better yet, banned.
Despite her conclusion, however, left unsaid, is the reality that “gift giving”—let’s call it what it actually is, bribing—is the ubiquitous way that the grease and glue of professional relationships continues as the status quo in America.
I can’t speak for any profession or forum other than my own, but as a retired Montana Supreme Court Justice I can say that all the Montana judges (state and federal) whom I know and justices with whom I worked and served with never were, and are not, at the end of this ubiquitous grease and glue gun.
Montanans receive from their courts fair, honest, impartial, and independent decisions based on record-based facts and applicable law. No greasing the skids or gluing justice in Montana’s courts.
Of course gifts are not the only forms of grease and glue that benefit politicians. There are hefty campaign donations and financial support and benefits for politicians’ and their business and religious interests, to name a few. When corporate and sectarian Montana benefit from lawmaking, they return the favor.
And, that is precisely why Montana’s Governor, and supermajority/Freedom Caucus legislators have launched attacks on our state courts. Why? So that they can ride roughshod over our Constitution and the rule of law. And, because our courts and judges, in doing their jobs, are the thorns in the glue and the sand in the grease that the political branches need to maintain their political power and favor with corporate and sectarian Montana.
These executive branch leaders and these legislators refuse to acknowledge our constitutionally-mandated system of three, distinct, co-equal branches of government, (Montana Constitution, Article III, section 1). Worse, these political branches seek either to control the courts to favor their own partisan ideologies and the businesses and special interests that support them; or, failing that, they seek to marginalize, demonize, and destroy our state courts altogether.
To this point, every judge and justice and every public official in Montana take the same oath of office, (Montana Constitution, Article III, section 3): "I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God)."
Since 2021, the only branch of the Montana government that takes this oath of office seriously is the judicial branch.
Indeed, the executive and legislative branches of our government have demonstrated willful, abject disrespect for and noncompliance with this oath. Their go-to attitude is not “how can we comply with our oath, the Constitution and the rule of law?” but, rather, “what can we get away with to favor our party and those that support our maintaining political power?” “How do we keep getting the grease and glue?”
The political branches aside, at least we don’t have state or federal judges and justices in Montana in the mold of what we are witnessing by Justice Thomas and Justice Alito. Rather, we have honest, fair, and ethical judges and justices committed to their oaths of office and the rule of law who are not benefiting from or held together with the grease and glue of corruption.
