It easy to lose track of all the scandals that should be haunting Supreme Court Justice Clarence Thomas. The latest centers on Charles and David Koch (the Koch brothers), who have run one of the largest privately-held companies in the world. Its annual revenues were $125 billion in March 2023.
In 1980, David, then 40, was the Libertarian Party candidate for vice president. He donated more than $2 million [$~9 million in 2023 dollars] to the Libertarian “party —- an astounding amount for the time —- to promote the Ed Clark–David Koch ticket.”
“The Libertarian Party, fueled in part with David’s wealth, pushed hard on the idea that government was the problem and the free market was the solution to everything,” according to Lisa Graves, co-director of the corporate watchdog group Documented.
[They] “advocated for the repeal of Social Security, Medicare, Medicaid, and other social programs… [They] opposed occupational licensure, antitrust laws, labor laws protecting women and children, and “all controls on wages, prices, rents, profits, production, and interest rates.”
… With their army of think tanks, front groups, lobbyists, and media ties, this multimillion dollar effort to shift the Overton Window grew for nearly four decades, culminating in the takeover of many core political institutions, federally and in key states. The duo additionally capitalized on the anti-government Tea Party movement, which they greatly helped along by bankrolling the conservative advocacy group Americans for Prosperity.
The brothers formed the Koch network, with a philanthropic nonprofit cover, Stand Together, in 2003. They were unhappy with Republican President George W. Bush.
ProPublica added to its long-running investigation of the Thomas ethics “lapses” on Friday 22 September 2023. Thomas, they wrote, “attended at least two Koch donor summits, putting him in the extraordinary position of having helped a political network that has brought multiple cases before the Supreme Court.”
Keep these five points in mind when you read or hear anyone criticizing the ProPublica investigation as a “hit piece.”
1. Thomas did not disclose private air travel in 2018.
On Jan. 25, 2018, Thomas arrived at Palm Springs International Airport on a private plane, a Gulfstream G200, owner unknown.
Thomas never reported the 2018 flight to Palm Springs on his annual financial disclosure form, an apparent violation of federal law requiring justices to report most gifts. A Koch network spokesperson said the network did not pay for the private jet. Since Thomas didn’t disclose it, it’s not clear who did pay.
In August, Thomas acknowledged taking three trips abroad with “Republican megadonor Harlan Crow” in 2022. He had not disclosed those trips prior to ProPublica reporting. He also “did not include any earlier travel at Crow’s expense, including a 2019 trip in Indonesia aboard the yacht owned by the wealthy businessman and benefactor of conservative causes.”
The US Supreme Court does not have a binding code of conduct. According to Jacobian, “Chief Justice John Roberts has repeatedly declined to use his position to impose a code of ethics on the highest court.”
2. In 2018, Thomas participated in a fundraising event for billionaire industrialists Charles and David Koch, who have had cases before the Supreme Court.
Although the US Supreme Court does not have a code of conduct, there is a code of conduct for United States Judges.
A judge should not … make speeches for a political organization or candidate … [or] attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.
The network of advocacy groups tied to billionaire industrialists Charles and [David Koch] pledged to spend close to $400 million on campaign contributions and policy initiatives in the lead-up to the vote in November, a 60 percent jump in spending from the 2016 election cycle, officials said. One of the hallmarks of that effort is a fresh influx of support for the Republican tax plan, with up to $20 million devoted to selling its benefits to voters this year.
Despite cries to the contrary, contemporaneous reporting makes it clear that the Palm Springs event was a fundraiser:
“We’ve made more progress in the last five years than I had in the last 50,” Koch told donors during a cocktail reception. “The capabilities we have now can take us to a whole new level. … We want to increase the effectiveness of the network … by an order of magnitude. If we do that, we can change the trajectory of the country.”
In 2018, about 700 people contributed “a minimum of $100,000 per year to the constellation of organizations that comprise the Koch network.”
Thomas supporters have tried to equate his 2018 speech with meeting with students in Washington, DC:
“Recently, Justice Thomas met at the Court with 60 students from a school in the Bronx. I can’t wait for ProPublica’s expose about Justice Thomas not disclosing this meeting on his form next year,” he said.
3. In 2008, Thomas spoke at a political fundraising event in Palm Springs sponsored by Charles Koch.
Had Thomas been appointed only as a U.S. judge, his mere presence at a private political event would have been a clear violation of the code of ethics. As ProPublica makes clear:
Every winter, the [Koch] network holds its marquee fundraising event in the Coachella Valley in Southern California. Hundreds of donors fly in to learn how their money is being spent and plan for the coming year. Former staffers describe an emphasis on preventing leaks that bordered on obsession. The network often rents out an entire hotel for the event, keeping out eavesdroppers. Documents left behind are methodically shredded. One recent attendee recalled Koch security staff in a golf cart escorting their Uber driver out of the hotel to make sure he left. The former staffers spoke on the condition of anonymity because they feared retaliation (emphasis added).
When was the first Thomas appearance? He did not report it on annual disclosures. However, in 2010 “reporters obtained an invitation sent to potential Koch donors that mentioned Thomas had been ‘featured’ at one of the network’s previous summits.”
Thomas attended the Koch donor event in 2008 but had claimed the Palm Springs trip was “a Federalist Society speech.” Charles Koch sponsored the Federalist Society dinner that was concurrent with the Koch donor event.
There was private airplane conveyance then, too.
4. The Koch brothers are adamently anti-regulation.
When David ran for vice president, the Libertarian party platform “called for abolishing the Environmental Protection Agency (EPA), the Department of Energy and the Food and Drug Administration.” Note that Republican President Richard M. Nixon created the EPA.
In 2003, the Koch brothers criticized President George W. Bush for “increasing destructive regulations,” Charles Koch told Marketplace in 2015. In 2003, “we said, ‘Gosh, we’ve got to get involved in politics’.”
This may have been a response to the Sarbanes-Oxley Act (2002) which the White House called a “corporate (anti) corruption bill.” It was designed to “protect investors from fraudulent financial reporting by corporations.”
5. The Koch influence extends beyond an annual Palm Springs donor shindig.
For 25 years, Thomas has regularly attended a two-week “all male retreat that attracts some of the nation’s most influential corporate and political figures.” His patron at the Bohemian Grove: Harlan Crow. The cost: thousands for a guest.
There’s a saying among the Bohemians, as the club’s members call themselves: The only place you should be publicly associated with the Grove is in your obituary. That privacy is paramount, members said, in part to allow the powerful to speak freely — and party — without worrying about showing up in the press. Only designated photographers are allowed to take pictures. Cellphones are strictly forbidden…
ProPublica was able to confirm six trips Thomas took to the retreat that he didn’t disclose. Flight records suggest Crow has repeatedly dispatched his private jet to Virginia to pick up Thomas and ferry him to the Sonoma County airport and back, usually for a long weekend in the middle of the Grove festival (emphasis added).
The Koch brothers, of course, attended these retreats and are part of a Republican entourage that lodge at a camp called Midway.
During the annual retreats, the Kochs often discussed political strategy with fellow guests, according to multiple people who’ve spent time with them at Midway. A few years ago, Brian Hooks, one of the leaders of their political network, was a guest at the camp the same weekend Thomas was there. A former Midway employee recalled the brothers discussing super PAC spending during the Obama years and complaining about government regulation…
Thomas and the Kochs developed a bond over their years at the retreat, according to five people who spent time with them there. They discussed politics, business and their families. They often sat together at meals and sat up talking at night at the lodge. A photo obtained by ProPublica captures Thomas and David Koch smiling on Midway’s deck.
6. At risk, the SCOTUS decision in 1984, Chevron v. NRDC, because Thomas has done a 180.
The often-cited case resulted in the “Chevron deference,” which assesses whether a court should “grant deference to a government agency’s interpretation of a statute which it administers.” The two-step process:
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
Predictably, the anti-regulation Koch brothers did not like the Chevron deference.
The Koch network has challenged Chevron in the courts and its lobbyists have pushed Congress to pass a law nullifying the decision. It has also provided millions of dollars in grants to law professors making the case to overturn it.
In 2005, Thomas wrote the majority opinion in National Cable & Telecommunications Association v. Brand X Internet Services, which expanded the Chevron deterence doctrine. The Court agreed that the “FCC lawfully construed the Communications Act to not define cable broadband providers as ‘telecommunications services’.”
In February 2020, Thomas reversed himself in a minority opinion. The Brand X deference that he wrote in 2005 was no longer “[consistent] with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation.”
As Mark Joseph Stern said to Slate:
[A]fter 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.
In March 2004, the GOP demanded Justice Ruth Bader Ginsberg recuse herself for far less.
After she spoke at a public event “cosponsored by the NOW Legal Defense and Education Fund, a women’s rights group that filed friend-of-the-court briefs at the Supreme Court,” 13 GOP US Representatives asked Ginsberg to recuse herself from any abortion cases.
A public event, not a private one.
No Republican in Congress has criticized Thomas.
Read the ProPublica series
- Billionaire Harlan Crow Bought Property From Clarence Thomas. The Justice Didn’t Disclose the Deal.
- Clarence Thomas’ 38 Vacations: The Other Billionaires Who Have Treated the Supreme Court Justice to Luxury Travel
- Clarence Thomas Defends Undisclosed “Family Trips” With GOP Megadonor. Here Are the Facts.
- Clarence Thomas Had a Child in Private School. Harlan Crow Paid the Tuition.
- Clarence Thomas Secretly Participated in Koch Network Donor Events
- Ethics Watchdog Urges Justice Department Investigation Into Clarence Thomas’ Trips
- How Harlan Crow Slashed his Tax Bill by Taking Clarence Thomas on Superyacht Cruises
- The Origins of Our Investigation Into Clarence Thomas’ Relationship With Harlan Crow
Known for gnawing at complex questions like a terrier with a bone. Digital evangelist, writer, teacher. Transplanted Southerner; teach newbies to ride motorcycles. @kegill (Twitter and Mastodon.social); wiredpen.com