Justices on Yachts: A Value Over Replacement Theory

Abstract

The Justices have it made. On top of their government salaries, guaranteed until retirement or death, they are pampered with luxuries supplied by various wealthy benefactors—billionaire friends, big publishing houses, and well-funded nonprofits. These benefactors make (and forgive) large loans, book fancy resorts in exotic locations, and save seats on their yachts—glacial-iced cocktails included. The public is rankled. Something seems amiss, but it is hard to say exactly what. There is scant evidence of any quid pro quo. None of this luxury treatment has likely changed any Justice’s vote in any particular case. Thus, the problem here isn’t run-of-the-mill corruption.

In this Essay, we explore an alternate theory. These donors are not trying to influence individual votes; they are trying to influence Justices’ decisions about whether to keep voting at all. The Justices’ government salaries are generous. But their private-sector earning potential is far higher, supplying a strong incentive to retire relatively early and maximize lifetime consumption. Supplying a sitting Justice with a luxury lifestyle reduces the retirement incentive, “locking in” the Justice as a voter in more cases.

We explore this strategy for influencing the Court and model its expected results. We argue that, rationally, the strategy will be deployed differentially. All other things equal, Justices who are older and more ideologically extreme, compared with the expected replacement Justice, will receive more pampering. This will systematically both alter the mix of cases the Court hears and its substantive decisions to favor moneyed and politically hardline interests.

Keywords: Supreme Court, Ethics, Code of Conduct, Justice, Value over Replacement, Bribe, Corruption, Honest Services

JEL Classification: K10, K40, K42