Opinion: Understanding the deeper dimension of the U.S. Supreme Court’s corruption crisis

By JONATHAN P. BAIRD

Published: 10-10-2023 4:00 PM

Jonathan P. Baird lives in Wilmot.

The stories about corruption at the U.S. Supreme Court keep mushrooming. We first heard about Justice Clarence Thomas accepting expensive gifts from billionaire Harlan Crow that Thomas never reported. After Thomas became a justice, Crow became his “friend.” Then we heard about Justice Samuel Alito and his unreported trip with billionaire Paul Singer, an individual who has had business before the Court. Alito hasn’t recused himself.

I think the recent story about Justice Thomas and the Koch network gets closer to the deeper dimension of the corruption. In microcosm, it exposes the process of how right-wing billionaires buy their brand of justice.

On January 25, 2018, the Koch brothers flew Thomas to their annual member donor summit on a Gulfstream G-200 jet. We still don’t know who paid for that trip. The event is a weekend of strategizing and high-dollar fundraising.

The Kochs used Thomas as a fundraising draw. Donors were promised that if they paid one hundred thousand dollars or more, they would be able to attend an elite event where Thomas would speak. Thomas never reported the Koch event or the travel on his annual federal financial disclosure form.

Charles Koch (the remaining live Koch brother) is one of the 25 richest people in the world. He is worth an estimated $64 billion. His network has raised a fortune from other wealthy donors used to support a variety of ultra-conservative causes. The network raised over $700 million in 2021. More recent data is not yet available.

You might call this money the Billionaire Defense Fund. Clearly, some of the money has been directed at Thomas and winning him over as Thomas has a weakness for the luxury lifestyle. This is the pay-to-play, purchasing Justice Thomas. The gifts are not a straight-up bribe but they are influencing.

Koch met Thomas at Bohemian Grove, a secretive annual all-men’s retreat held in Northern California. Thomas has been a frequent attendee and he met Koch there. Bohemian Grove is like a fraternity party for super-rich and powerful people. Over the last two decades, Thomas often stayed with the Kochs and Harlan Crow.

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There are at least three ways Thomas violated the law and has been compromised ethically. As explained by law professor Richard Painter, Thomas violated financial disclosure rules; he violated laws prohibiting judges from participating in partisan fundraising; and he hasn’t recused from cases where he should have. Chief Justice Roberts has been looking the other way but these violations are so egregious that Roberts should at least demand Thomas recuse himself from the upcoming case, Loper Bright v Raimondo.

The case raises the matter of Chevron deference. Without getting too into the legal weeds, the 1984 Chevron v NRDC case gave wide deference to federal administrative agencies in how agencies’ laws, rules and regulations are interpreted. Thomas himself was a very strong supporter of Chevron deference, writing an opinion in 2005 defending the power of administrative agencies.

Very strangely for someone who is almost always ideologically unmovable, Thomas’s view has now flipped. After hanging out with the Kochs who see Chevron deference as an abomination, Thomas completely reversed course. He is now on record opposing deference to administrative agencies just like his corporate benefactors. Koch network staff attorneys are asking the Court to reverse this almost 40-year-old precedent.

A major part of the Koch agenda is what is often called “deconstructing the administrative state.” The Koch network has been dedicated to reining in and limiting the power of federal agencies to issue regulations in many areas of the law.

Whether it is the environment, worker rights, consumer rights, or worker health and safety, the Koch network wants to obliterate federal regulation. They want no entity to interfere with their corporate profit-making agenda, their prerogative to pollute, exploit workers or push out greenhouse gases as much as they like.

Based on his behavior, Thomas’s impartiality is in serious question. And Loper Bright is not the only case where a justice should be recusing. Similar questions are raised for Justice Alito in a tax case where one of the lawyers involved, David Rivkin, had interviewed him for a Wall Street Journal opinion piece. Rivkin and Alito are pals. Rivkin is also counsel to Leonard Leo of Federalist Society fame on the matter of Leo’s role in facilitating gifts of free transportation and lodging Alito accepted from Paul Singer.

Leonard Leo is the man behind the curtain in understanding what has happened to the Supreme Court. As the key Federalist Society operative, he greased the relationship between Thomas, the Kochs and Crow. Leo, who is close to Thomas, actually arranged Thomas’s appearances at the Koch donor events.

The deeper dimension of this story is how it illustrates the scheme by right-wing billionaires to capture the Supreme Court. No one has spoken about this more forcefully than Rhode Island Senator Sheldon Whitehouse. Because the radical right could not achieve their goals openly, they resorted to unlimited dark money donations, phony front groups, and a veil of secrecy to hide how the Court has been captured.

Their agenda is climate denialist, pro-elite, deregulatory and anti-democracy.

On the positive, the Senate Judiciary Committee is now investigating the allegations that Supreme Court justices accepted and failed to disclose lavish gifts received from their billionaire benefactors. The Senate Finance Committee is also investigating federal tax compliance with the undisclosed gifts.

There are also increasing calls for justices with conflicts of interest to recuse themselves from cases where justices have ties to billionaires with business before the Court. More than 40 U.S. watchdog groups have called on Chief Justice Roberts to force Thomas and Alito to recuse where they are conflicted. 50 House Democrats wrote Justice Thomas an open letter asking him to recuse from Loper Bright.

It would appear that Thomas and Alito are immune to shame. They have moved beyond the appearance of impropriety to something worse. The Court’s legitimacy problem is anything but over.