Clarence Thomas’ Latest Pay-to-Play Scandal Finally Connects All the Dots

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. And part of what they do is deregulation. So we can no longer be like: Oh, it’s so weird Paul Singer happened to have a case before the court, and Alito didn’t know! No, now we know that you are part of a machine that seeks to do away with federal regulations and seeks to undermine federal agencies’ ability to operate. Last go round, we called it quid pro Crow, and now we’re calling it quid pro Koch, but it’s the same pay-to-play.

The other thing that’s so, so important here is that you’re no longer talking about Harlan Crow having some businesses that may or may not have benefited from the largesse of Clarence Thomas’ votes. Now you literally have Clarence Thomas changing his mind on Chevron to absolutely benefit people for whom part of the project was to do away with Chevron. So it’s just such a clear, straight line.

Stern: There’s no speculation required to connect those dots. There had been previous reporting on why Clarence Thomas changed his mind about Chevron deference, because it is a big question. It’s a huge anomaly in his jurisprudence to have an about-face like this, and I think the ProPublica report makes any kind of remaining subtext very clear. He was initiated into this circle through a conscious effort—basically recruited, right?

Lithwick: Groomed. Let’s say groomed.

Stern: He was groomed by deregulatory extremists, right? Who want to abolish the administrative state, who want to abolish many if not most federal agencies, who think that agency rulemaking is this grotesque evil that is crushing the entrepreneurial spirit of America. And that if the EPA dares to regulate mercury, then it will, you know, forever destroy America’s GDP. So it falls on courageous conservative justices to stand athwart this regulatory machine. That’s their belief. Thomas was surrounded by people saying that. And he changed his mind about it in harmony with what those people were telling him. Do I think there was bribery or quid pro quo? No, that’s not how this happens. But that doesn’t mean that we can’t acknowledge the reality that he was influenced by these people who were on a mission to influence him. It’s that level of pay-to-play. When you combine that with illegally lying on your disclosure forms, you have disqualified yourself from being a justice.

Lithwick: I can’t help but think at the end of the day, the winner with each of these revelations is John Roberts. Because the more that the stink of what both Alito and Thomas have done drives Amy Coney Barrett and Brett Kavanaugh into Roberts’ arms, the more we’re going to have the Roberts court as opposed to the Thomas court we had two years ago. I’m trying to imagine John Roberts being horrified and sickened at the court yet again—getting a black eye over just self-inflicted lying and self-inflicted rule-breaking and the ego and the hubris of thinking you wouldn’t get caught—but at the same time, he must be so stoked.

Stern: I think this last term provided a lot of data points to support this theory. Kavanaugh and Barrett are looking at the two different ways you can be a conservative on the Supreme Court. Do you say, “Screw the rules, screw the law, I’m going to do whatever the hell I want and hang out with my billionaire friends and engage in corruption”? Or are they going to side with John Roberts, who really makes an effort—not always successfully—to act like a real justice who is trying to uphold a certain baseline of ethical standards? Even if he gets pissy when the Senate asks him if he’s doing enough, he does have a strong sense that being an upright, principled judge bolsters the institution’s legitimacy. Thomas does not. I think Kavanaugh and Barrett might be asking themselves: We’re going to be here into the 2040s, maybe the 2050s. Do we really want to side with the guy who wants to burn it all down?