Clarence Thomas’ latest pay-to-play scandal finally connects all the dots

By | September 23, 2023

Dahlia Lithwick and Mark Joseph Stern write:

ProPublica released a new report on Friday detailing Justice Clarence Thomas’ close relationship with the Koch brothers with previously undisclosed and extraordinarily damning new details. According to ProPublica, the justice developed a friendship with the Kochs as they were funneling hundreds of millions of dollars into right-wing causes, many of which ended up before the Supreme Court. The brothers then used Thomas to raise money for their sprawling network, inviting him to speak at “donor events” that brought in millions of dollars. He disclosed none of these activities on his annual disclosure forms, an obvious violation of federal ethics law.

On Saturday’s Slate Plus segment of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed the justice’s latest scandal and its potential effect on the rest of the court. Their conversation has been condensed and edited for clarity.

Mark Joseph Stern: The ProPublica piece identifies two different phenomena. The first is Bohemian Grove, which is where the Kochs developed this relationship with Clarence Thomas over the years. And then, out of that relationship, came Thomas’ attendance at donor summits with the Kochs, where donors are promised that if they pay a bunch of money—hundreds of thousands of dollars—they will be able to attend this super exclusive event where Clarence Thomas speaks. And these events include luxury travel on private jets for Thomas. It’s clearly a fundraiser. These events and flights should have been disclosed, and they weren’t.

That doesn’t exactly build up trust for Justice Thomas. And it doesn’t encourage faith that his jurisprudence is rooted exclusively in his own views of the Constitution and the law. Thomas loves to say he’s not evolving, right? He loves to say he’s steady as a rock. But there’s one area where that has really not applied, which is this issue of Chevron deference—deferring to administrative agencies and their reasonable interpretations of ambiguous federal laws. For years, Thomas was a strong supporter of Chevron deference and even wrote a major decision expanding it. But after he was cultivated by the Kochs and became their close friend, he drifted away from Chevron, ultimately renounced and repudiated Chevron deference and is now on the brink of issuing or joining a decision that will overturn Chevron deference this coming term, in a case that is partly funded and supported by the Koch network.

Am I saying he was bribed? No. I don’t think that he got a giant bag of cash in return for renouncing Chevron. But I do think that he was very consciously initiated into the kind of social circles where everyone he spoke with would make it clear that they thought Chevron deference was atrocious and extreme regulatory overreach, and that all of the incentives in his life suddenly ran toward getting rid of Chevron, even though he had cleaved to it for so long.

Dahlia Lithwick: The only gloss I might add is that each and every time one of these issues come up, we hear: Well, but these are just his friends, right? Harlan Crow is his friend, Leonard Leo is his friend, all these influence peddlers and purchasers of Supreme Court justices are really just friends. But this is different. This is a machine, a political machine, the Koch brothers. This is what they do. [Continue reading…]

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