Justice Clarence Thomas once championed the Supreme Court line of precedent giving deference to federal agency expertise—the so-called “Chevron deference” doctrine—writing in 2005 that the Federal Telecommunications Commission was “in a far better position to address these questions than we are” in a case involving regulation of broadband internet service given that the “subject matter [that] is technical, complex, and dynamic.”
Thomas’ decision in that case—one known as Brand X—was no outlier given that the Chevron case from which the precedent arose has been cited more than 15,000 times since being decided by the high court in 1984. But 15 years later, Thomas announced that his own decision in that case was wrong because it added to the “constitutional deficiencies of Chevron and exacerbates them.” Unusually, Thomas announced his change of heart in a dissent where he advocated that SCOTUS should have accepted a case for the purpose of overruling his own opinion.
What changed?
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One possible influence on the justice’s heart and mind is his previously secret history of involvement with the conservative political organization—known as the Koch network—founded by the libertarian billionaires Charles and David Koch. The Koch network has been a prime mover in the effort to whittle back and overturn the Chevron case as part of a conservative agenda to cut back on what they perceive as government overreach.
Recent reporting by ProPublica, reveals that Thomas has attended at least two donor events for the Koch network, such as the one in 2018 in which he was flown in on a private Gulfstream G2000 jet to Palm Springs, California and was a featured speaker, attending a private dinner with network donors.
“To be invited to events like the annual summit, donors typically have to give at least $100,000 a year. Those who give in the millions receive special treatment, including dinners with Charles Koch and high-profile guests. Doling out access to powerful public officials was seen as a potent fundraising strategy,” former staffers told the publication.
Thomas never reported the 2018 trip on his annual financial disclosure form. That’s the same annual financial disclosure form that for the year 2022 Thomas received an extension to file months later than other justices—as did Justice Alito—and used to justify his failure to disclose luxury trips and real estate purchases paid for by conservative billionaire Harlan Crow.
The real estate purchase dated back to 2014 but Thomas did not explain it until now and only after a string of exposes about his being the beneficiary of luxury trips, financing a luxury RV as well as the real estate purchase of a home in which Thomas’ mother lives.
Thomas’ attendance at the Koch network meeting is significant because of the Koch network’s extraordinary presence in advocacy work, including cases before the Supreme Court. “The Koch network is among the largest and most influential political organizations of the last half century, and it’s underwritten a far-reaching campaign to influence the course of American law,” ProPublica reports.
For example, the Koch network—recently rebranded as “Stand Together”—through it’s lawyers are now poised to have the Supreme Court achieve the goal of reversing the Chevron case because the high court has now accepted a case to hear next term with the specific purpose of considering whether to overrule the Chevron doctrine.
Thomas’ attendance at these donor events “puts Thomas in the extraordinary position of having served as a fundraising draw for a network that has brought cases before the Supreme Court, including one of the most closely watched of the upcoming term.”
Any federal judge who concealed such a trip would likely be considered to be in violation of their reporting requirements as well as the judicial code of conduct. “I can’t imagine—it takes my breath away, frankly—that he would go to a Koch network event for donors,” said John E. Jones III, a retired federal judge appointed by President George W. Bush. Jones said that if he had gone to a Koch summit as a district court judge. “I’d have gotten a letter that would’ve commenced a disciplinary proceeding.”
That is, any federal judge except one that sits on the U.S. Supreme Court. Unlike all other judges—federal and state—Supreme Court judges are not subject to any ethics code and steadfastly refuse to adopt one despite growing public criticism and the American Bar Association’s call for SCOTUS to adopt an ethics code.
The decades-long litigation agenda pursued by the Koch network and other conservative groups is enormously well-funded and plays a very successful long game. The overturning of Roe v. Wade is but one example of its successes. If the Chevron doctrine is thrown out, then much of the true authority over federal regulations will default to the judiciary and therefore to SCOTUS. Decisions about climate change, for example, would be greatly complicated if the Environmental Protection Agency efforts to curtail carbon emissions are derailed through judicial decisions.
In a less high-profile light is the case that puts Chevron on the chopping block—Loper Bright Enterprises v. Raimondo—which involves the authority of the National Marine Fisheries Service to make commercial fishing companies pay for the costs of monitoring compliance with fishery management plans.
While opinions can reasonably differ on the wisdom of agency decisions as well as judicial decisions, opinion should not differ on the view that there is something wrong with allowing justices who benefit financially from groups arguing the cases before them deciding those cases.
It’s not that Thomas—or any other justice—can’t associate with whomever they wish but when the justices are gifted hundreds of thousands of dollars it has to be disclosed as do appearances at fundraising events which other federal judges would be disciplined for attending.
The code of conduct for the federal judiciary lays out rules designed to preserve judges’ impartiality and independence, which it calls “indispensable to justice in our society.” The code specifically prohibits both political activity and participation in fundraising. Judges are advised, for instance, not to “associate themselves” with any group “publicly identified with controversial legal, social, or political positions.”
Nor is the problem with any group—conservative or liberal—engaging in decades-long strategies for changing the law through litigation. That kind of advocacy—for better or worse—is part of our system of civil justice. No, the problem is when these changes in law are not achieved through advocacy but rather through seeking to influence judges who sit on the nation’s highest court through financial benefits involving gifts and trips.
Thomas should be forced to recuse himself from hearing cases brought by groups that he helps fundraise for and who fly him on private jets. He may even need to be investigated by Congress or the Justice Department for his failure to make timely and full disclosures. But none of that can happen so long as there is no transparency about who Thomas helps and who helps him. It all starts with transparency.
