|Clarence and Ginni Thomas|
The dirt gathering around Clarence and Ginni Thomas just took on new and grander proportions, with evidence indicating Thomas changed his position on a longstanding legal doctrine while he and the missus were lavished with gifts from influential GOP activists. Many Americans probably have enough experience with their local courts (state and federal) to not be surprised that those institutions are compromised -- as we've reported numerous times here at Legal Schnauzer. (See here and here for two of many examples.)
Would those same Americans be disturbed, even nauseated, to know that the nation's highest court is openly for sale. The latest revelations about Clarence and Ginni Thomas suggest that is the case. In fact, Clarence Thomas changed his own position on an established holding regarding U.S. regulatory agencies as he and his wife were receiving payments and other favors from GOP-connected court influencers. This has the look and smell of unvarnished bribery, and it raises these questions: Is the dirt surrounding Thomas now voluminous enough to attract the attention of the U.S. Department of Justice (DOJ) and Attorney General Merrick Garland? Could this lead to a federal investigation of Thomas' chief benefactors -- billionaire real-estate magnate Harlan Crow and Federalist Society chief Leonard Leo.
The latest on the Thomas sleazefest comes to us via The Lever and reporters Julia Rock and Andrew Perez, who write under the headline "Clarence Thomas Reversed Position After Gifts And Family Payments; The Supreme Court justice switched sides on a landmark legal doctrine, satisfying his benefactors’ conservative advocacy machine":
Supreme Court Justice Clarence Thomas changed his position on one of America’s most significant regulatory doctrines after his wife reportedly accepted secret payments from a shadowy conservative network pushing for the change. Thomas’ shift also came while he was receiving lavish gifts from a billionaire linked to other groups criticizing the same doctrine — which is now headed back to the high court.
The so-called “Chevron deference” doctrine stipulates that the executive branch — not the federal courts — has the power to interpret laws passed by Congress in certain circumstances. Conservatives for years have fought to overturn the doctrine, a move that would empower legal challenges to federal agency regulations on everything from climate policy to workplace safety to overtime pay.
Thomas wrote a landmark Supreme Court opinion upholding the doctrine in 2005, but began questioning it a decade later, before eventually renouncing his past opinion in 2020 and claiming that the doctrine itself might be unconstitutional. Now, Thomas could help overturn the doctrine in a new case the high court just agreed to hear next term.
Groups within the conservative legal movement funded by Leonard Leo’s dark- money network and affiliated with Thomas’ billionaire benefactor Harlan Crow have organized a concerted effort in recent years to overturn Chevron. That campaign unfolded as they delivered gifts and cash to Thomas and his family in the lead-up to his shift on the doctrine.
Is Clarence Thomas, to put it bluntly, "bought" -- and does his status as a willingly "captured" justice affect his rulings on the nation's highest court? The Lever presents plenty of evidence to suggest the answer is yes:
In 2010, Crow bankrolled a dark money group led by Thomas’ wife, Ginni, that paid her $120,000. Leo was on the group’s board of directors. In 2012, Leo’s dark-money network steered undisclosed consulting payments to Thomas’s wife. The Leo network has funded Republican politicians and several nonprofits pressing the Supreme Court to overturn the Chevron doctrine next term.
Crow, meanwhile, provided luxury travel to the Thomas family for two decades. The justice did not report those trips, and similarly failed to disclose that Crow bought his mother’s house and allowed her to keep living there rent free and paid his grandnephew’s boarding-school tuition.
Spokespeople for Leo, Crow’s company, and the Supreme Court did not respond to The Lever’s requests for comment.
Gee, that's a surprise -- nobody wants to comment on apparent bribery. Maybe that's what happens when Thomas' actions have become impossible to defend. From The Lever:
Did Thomas' reasoning stay consistent, as one might expect from an avowed "textualist"? Nope. In fact, Thomas soon began arguing with himself. Write Rock and Perez:
After revelations of the gifts and cash, Thomas’ most loyal defenders have sought to deflect criticism by depicting the justice as immune from influence, insisting that he “refuses to compromise his principles,” as Utah Sen. and former Supreme Court clerk Mike Lee (R) claimed in a recent tweet.
But in this situation, Thomas abandoned his own stated principles on an issue at the heart of one of the conservative movement’s most significant crusades to limit government regulation.
At issue is the 1984 Supreme Court case Chevron U.S.A v. Natural Resources Defense Council, brought by environmental advocates to challenge the Reagan administration’s weakening of air-pollution regulations.
The Supreme Court deferred to the Environmental Protection Agency’s (EPA) interpretation of the Clean Air Act, over the protests of environmentalists. The ruling was initially seen as a win for polluters, but it created the so-called Chevron doctrine, which became a landmark principle in administrative law, empowering federal agencies to interpret and implement statutes.
Justice Thomas initially was a defender of the Chevron doctrine. In 2005, he penned a decision upholding it — over the dissent of his fellow conservative Justice Antonin Scalia.
The case, National Cable & Telecommunications Association v. Brand X Internet Services, addressed a federal agency’s ability to regulate cable companies under a 1934 law.
Thomas wrote the majority opinion, arguing that the lower court should have applied the Chevron doctrine to the case and deferring to the agency’s interpretation of the law.
Within the ensuing decade, Thomas changed course to crusade against Chevron deference, eventually arguing that his own opinion in the 2005 case had been ill-advised. . . .
In 2020 Thomas went even further, making the unusual move of renouncing his own decision in the 2005 case of [National Cable & Telecommunications Ass’n v. Brand X Internet Services]. . . .
“Although I authored Brand X, ‘it is never too late to ‘surrende[r] former views to a better considered position,’” Thomas wrote in a later opinion, quoting from a 1950 court decision. “Brand X appears to be inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation. My skepticism of Brand X begins at its foundation — Chevron deference… Chevron is in serious tension with the Constitution, the [Administrative Procedure Act], and over 100 years of judicial decisions.”
So now, the Brand X opinion, which Thomas wrote, suddenly was at odds with the U.S. Constitution. Hmmm . . . I wonder how that transformation happened? The Lever provides insight, and it's ugly stuff for those who believe the rule of law, not moneyed influencers, should guide rulings of the U.S. Supreme Court:
Thomas’ stunning reversal did not happen in a vacuum — it happened amid a coordinated campaign by the conservative movement, led by a network that enriched him.
In the early 2010s, conservative groups began to take aim at the Chevron doctrine, building a case against it through law-review articles, legal challenges to regulations, and by installing justices on the court who were willing to overturn it.
“Conservative jurists, commentators, began to see Chevron as empowering the administrative state in ways they didn’t like,” Thomas Merrill, a professor at Columbia Law School, told Bloomberg.
The Federalist Society, the conservative lawyers organization where Leo is co-chair, was at the center of these efforts, publishing articles and touting theories undermining the Chevron doctrine and the administrative state. The American Enterprise Institute (AEI), where Crow sits on the board of trustees, was also agitating against the Chevron doctrine.A 2014 AEI publication lamented, “Chevron has become little more than a sedative for courts clearly anguished by the imaginative excesses of agencies, but unsure of the proper role of the judiciary in reining in those excesses.”
While conservative activists launched a judicial offensive funded by Leo’s dark-money network, Leo and Crow were also moving behind the scenes to influence the justices with gifts and payments.
The Washington Post reported recently that Leo steered payments to Thomas’ wife, Ginni, through a polling company run by Trump pollster Kellyanne Conway, and the expenses were quickly covered by Leo’s dark money network.
“No mention of Ginni, of course,” Leo wrote as he instructed Conway to give Ginni Thomas “another $25K.”
Why did Leonard Leo want "No mention of Ginni, of course"? Maybe he knew he was buying her husband, and mention of Ginni could lead back to Leo himself? This is a classic example of the underhandedness that has come to permeate postmodern conservatism. The winners have big money, and the losers . . . well, that's the rest of us. The Lever is onto a gross story here, and we advise you to hold onto your stomachs because it's about to get worse:
Leo, Ginni Thomas, and Crow were all involved with Liberty Central, a Tea Party-themed dark-money group formed in 2010. The organization was initially funded with $500,000 from Crow, according to Politico, while Leo served on its board of directors. The organization paid $120,000 to Ginni Thomas.
Over the past two decades, Crow has frequently provided the Thomas family with private jet and super-yacht trips that Clarence Thomas failed to disclose. Crow also bought a house owned by Thomas and allowed his mother to live there rent-free, and paid at least two years of boarding-school tuition for Thomas’ grandnephew whom the justice said he raised “as a son.”
The largesse that flowed to Thomas was part of a larger movement to pack the court with the kinds of justices who would throw out longstanding precedents like Chevron.
That leads us to "The Lyin' King" himself, Donald Trump, who essentially turned over the judicial-nomination process to Leonard Leo:
As President Donald Trump’s judicial adviser, Leo helped select three of the court’s six conservative justices — while his dark-money network simultaneously spent tens of millions to boost their confirmation campaigns
At least two of those justices, Neil Gorsuch and Brett Kavanaugh, were on record publicly opposing the Chevron doctrine.
When Gorsuch was nominated to replace Scalia in 2017, his hostility to Chevron deference was a key issue in congressional questioning. As a lower-court judge, Gorsuch had penned an infamous opinion calling Chevron “a judge-made doctrine for the abdication of the judicial duty.” Gorsuch would not only be to the right of Scalia on Chevron, but also could push the court’s existing conservatives to overturn the doctrine.
“Gorsuch may be the one to bring the court together on fundamental questions of administrative power that have sparked so much controversy and divisiveness in recent years,” corporate lawyer and conservative commentator Andrew Grossman told Reuters.
The next Trump appointee, Kavanaugh, also opposed Chevron. Leo told The New York Times that reining in executive-branch agencies was becoming a key priority for the conservative court: “It’s the next step in the national debate about the proper role of the courts. The administrative state is 75 years old,” he said, referring to the Administrative Procedure Act. “It’s become a huge, glaring issue.”
Trump’s third appointee, Amy Coney Barrett, had not indicated a clear position on Chevron in previous cases, and declined to reveal her position on Chevron during her confirmation hearing. “As a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals relating to that precedent,” she said.
Club for Growth, the nonprofit co-founded by Crow, published a memo on the issue of Barrett’s position on “Chevron & Administrative Deference,” which noted: “If Judge Amy Coney Barrett were seated on the Supreme Court, her judicial philosophy would have a positive impact on limiting agency overregulation.”
Club for Growth spent $5 million boosting Barrett’s confirmation.
Two points here bear repeating:
* Leonard Leo's dark-money network spent tens of millions of dollars to support the confirmation of three Trump judicial nominees, including Neil Gorsuch and Brett Kavanaugh.
* A nonprofit tied to Harlan Crow spent $5 million boosting Amy Coney Barrett's confirmation.
Anyone still think Crow lavished gifts on Clarence Thomas because the two are such "close friends"? If a Supreme Court justice can be bought that easily, what about other federal judges? As it turns out, the blatant buying of "justice" might just be getting started, The Lever reports:
Thomas’ reversal on the Chevron doctrine — and the conservative movement’s success in stacking the court — is more relevant than ever: Justices have voted to hear a case that could kill the doctrine outright.
The case, Loper Bright Enterprises v. Raimondo, deals with a Commerce Department rule that stipulates how fishery inspectors are paid. But the substantive issue in the case is whether the Supreme Court should overturn Chevron — as a slew of Leo-backed groups is lobbying the court to do.
The New Civil Liberties Alliance, which received $1 million in 2020 from Leo’s network, filed a brief supporting Loper Bright Enterprises. Leo’s group additionally contributed $350,000 in 2020 and again in 2021 to the Independent Women’s Forum. That organization’s affiliate, the Independent Women's Law Center, filed its own supportive brief in the case.
The Leo network has been the longtime top financier of the Republican Attorneys General Association, which elects GOP attorneys general. In December, 18 Republican attorneys general filed a brief in Loper Bright Enterprises, supporting the petitioners.