[The Supreme Court justice switched sides on a landmark legal
doctrine, satisfying his benefactors’ conservative advocacy machine.
] [[link removed]]


CLARENCE THOMAS REVERSED POSITION AFTER GIFTS AND FAMILY PAYMENTS  
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Julia Rock, Andrew Perez
May 9, 2023
The Lever
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_ The Supreme Court justice switched sides on a landmark legal
doctrine, satisfying his benefactors’ conservative advocacy machine.
_

Chevron Sign and Justice Clarence Thomas, (Chevron sign) AP
Photo/Alan Diaz, (Justice Thomas) AP Photo/Dr. Scott M. Lieberman)

 

Supreme Court Justice Clarence Thomas
[[link removed]] changed his position
on one of America’s most significant regulatory doctrines after his
wife reportedly accepted secret payments from a shadowy conservative
network pushing for the change. Thomas’ shift also came while he was
receiving lavish gifts from a billionaire linked to other groups
criticizing the same doctrine — which is now headed back to the high
court.

The so-called “_Chevron_ deference” doctrine stipulates that the
executive branch — not the federal courts — has the power to
interpret laws passed by Congress in certain circumstances.
Conservatives for years have fought to overturn the doctrine, a move
that would empower legal challenges to federal agency regulations on
everything from climate policy to workplace safety to overtime pay.

Thomas wrote a landmark Supreme Court opinion upholding the doctrine
in 2005, but began questioning it a decade later, before eventually
renouncing his past opinion in 2020 and claiming that the doctrine
itself might be unconstitutional. Now, Thomas could help overturn the
doctrine in a new case the high court just agreed to hear next term.

Groups within the conservative legal movement funded by Leonard
Leo’s dark money network and affiliated with Thomas’ billionaire
benefactor Harlan Crow have organized a concerted effort in recent
years to overturn _Chevron_. That campaign unfolded as they delivered
gifts and cash to Thomas and his family in the lead-up to his shift on
the doctrine.

In 2010, Crow bankrolled
[[link removed]] a
dark money group led by Thomas’ wife, Ginni, that paid her $120,000.
Leo was on the group’s board
[[link removed]] of
directors
[[link removed]].
In 2012, Leo’s dark money network steered
[[link removed]] undisclosed
consulting payments to Thomas’s wife. The Leo network has funded
Republican politicians and several nonprofits pressing the Supreme
Court to overturn the _Chevron_ doctrine next term.

Crow, meanwhile, provided luxury travel
[[link removed]] to
the Thomas family for two decades. The justice did not report those
trips, and similarly failed to disclose that Crow bought his
mother’s house
[[link removed]] and
allowed her to keep living there rent free
[[link removed]] and
paid his grandnephew’s boarding school tuition
[[link removed]].

Last year, Crow’s wife joined the board of trustees
[[link removed]] at
the Manhattan Institute, a conservative think tank that pressed
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Supreme Court to hear the new case aimed at ending
the _Chevron_ doctrine.

Crow also co-founded
[[link removed]] the
Club For Growth, a pro-business dark money group that issued a
memo pining
[[link removed]] for
the end of the _Chevron_ doctrine.

Spokespeople for Leo, Crow’s company, and the Supreme Court did not
respond to _The Lever_’s requests for comment.

Thomas Reverses Himself

After revelations of the gifts and cash, Thomas’ most loyal
defenders have sought to deflect criticism by depicting the justice as
immune from influence, insisting that he “refuses to compromise his
principles,” as Utah Sen. and former Supreme Court clerk Mike Lee
(R) claimed
[[link removed]] in
a tweet on Monday.

But in this situation, Thomas abandoned his own stated principles on
an issue at the heart of one of the conservative movement’s most
significant crusades to limit government regulation.

At issue is the 1984 Supreme Court case _Chevron U.S.A v. Natural
Resources Defense Council_, brought by environmental advocates to
challenge the Reagan administration’s weakening of air pollution
regulations.

The Supreme Court deferred to the Environmental Protection Agency’s
(EPA) interpretation of the Clean Air Act, over the protests of
environmentalists. The ruling was initially seen as a win for
polluters, but it created the so-called _Chevron_ doctrine,
which became
[[link removed]] a
landmark principle in administrative law, empowering federal agencies
to interpret and implement statutes.

Justice Thomas was initially a defender of the _Chevron_ doctrine.
In 2005, he penned a decision upholding it — over the dissent of his
fellow conservative Justice Antonin Scalia.

The case, _National Cable & Telecommunications Association v. Brand X
Internet Services_, addressed a federal agency’s ability to regulate
cable companies under a 1934 law.

Thomas wrote the majority opinion
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arguing that the lower court should have applied
the _Chevron_ doctrine to the case and deferring to the agency’s
interpretation of the law.

“If a statute is ambiguous, and if the implementing agency's
construction is reasonable, _Chevron_ requires a federal court to
accept the agency's construction of the statute, even if the agency's
reading differs from what the court believes is the best statutory
interpretation,” Thomas wrote, defending both the legitimacy of the
doctrine and its application in a landmark administrative law case.

But within the ensuing decade, Thomas changed course to crusade
against _Chevron_ deference, eventually arguing that his own opinion
in the 2005 case had been ill-advised.

“In a period spanning less than three months in the spring of 2015,
Justice Thomas issued five concurring or dissenting opinions that set
forth a comprehensive, originalist take on the administrative
state,” one of his former clerks, Elbert Lin, wrote
[[link removed]] in
a _Yale Law Journal_ article in 2017. “Though Justice Thomas
himself had authored one of the Court’s most significant cases
affording deference to administrative agencies — _National Cable &
Telecommunications Ass’n v. Brand X Internet Services _— I argue
it should come as little surprise that he would be the first to
question that case if he felt the Constitution demanded it.”

One of those five opinions came in _Michigan v. Environmental
Protection Agency_, a 2015 case challenging the EPA’s ability to
regulate power plants under the Clean Air Act. Thomas joined the
conservative majority, ruling that the EPA had overstepped its
authority, and wrote his own
[[link removed]] concurrence
arguing that _Chevron_ deference unconstitutionally delegated power
from the judiciary to the executive branch.

“Although we hold today that EPA exceeded even the extremely
permissive limits on agency power set by our precedents, we should be
alarmed that it felt sufficiently emboldened by those precedents to
make the bid for [_Chevron_] deference that it did here,” Thomas
wrote.

In 2020 he went even further, making the unusual move of renouncing
his own decision in the 2005 _Brand X_ case.

That year, conservative groups were petitioning the Supreme Court to
take an administrative law case involving Howard and Karen Baldwin,
two movie producers who had overpaid taxes to the IRS and were trying
to get their money back using an obscure argument about the postmark
date of a letter.

The Baldwins lost their case at the Ninth Circuit Court of Appeals,
which cited _Brand X_ precedent in ruling against the couple. The
Leo-linked New Civil Liberties Alliance petitioned the Supreme Court
[[link removed]] to
hear an appeal and overturn _Brand X_. Leo’s dark money
group donated
[[link removed]] $1
million in 2020 to the New Civil Liberties Alliance.

The Supreme Court voted not to take the case, with only Thomas
[[link removed]] dissenting.

“Although I authored Brand X, ‘it is never too late to
‘surrende[r] former views to a better considered position,’”
Thomas wrote
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from a 1950 court decision. “Brand X appears to be inconsistent with
the Constitution, the Administrative Procedure Act (APA), and
traditional tools of statutory interpretation. My skepticism of Brand
X begins at its foundation — _Chevron_ deference… _Chevron_ is
in serious tension with the Constitution, the [Administrative
Procedures Act], and over 100 years of judicial decisions.”

Flipping The Court

Thomas’ stunning reversal did not happen in a vacuum — it happened
amid a coordinated campaign by the conservative movement, led by a
network that enriched him.

In the early 2010s, conservative groups began to take aim at
the _Chevron_ doctrine, building a case against it
[[link removed]] through
law review articles, legal challenges to regulations, and by
installing justices on the court who were willing to overturn it.

“Conservative jurists, commentators, began to see _Chevron_ as
empowering the administrative state in ways they didn’t like,”
Thomas Merrill, a professor at Columbia Law School, told
[[link removed]] _Bloomberg._

The Federalist Society, the conservative lawyers organization where
Leo is co-chair, was at the center of these efforts, publishing
[[link removed]] articles
[[link removed]] and touting
theories
[[link removed]] undermining
the _Chevron_ doctrine and the administrative state. The American
Enterprise Institute (AEI), where Crow sits on the board
[[link removed]] of trustees, was also
agitating against the _Chevron _doctrine.

“The constant but erratic appeal to _Chevron_ deference seems to
us unsound not only for the exalted position that it confers on
administrative expertise, but also for the massive political forces
— think again of _Sprietsma _— that it unleashes at the highest
levels inside the executive branch and administrative agencies,”
read a 2011 publication
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AEI.

A 2014
[[link removed]] AEI
publication lamented, “_Chevron_ has become little more than a
sedative for courts clearly anguished by the imaginative excesses of
agencies, but unsure of the proper role of the judiciary in reining in
those excesses.”

While conservative activists launched a judicial offensive funded by
Leo’s dark money network, Leo and Crow were also moving behind the
scenes to influence the justices with gifts and payments.

The _Washington Post_
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last week that Leo steered payments to Thomas’ wife, Ginni, through
a polling company run by Trump pollster Kellyanne Conway, and the
expenses were quickly covered by Leo’s dark money network.

“No mention of Ginni, of course,” Leo wrote as he instructed
Conway to give Ginni Thomas “another $25K.”

Leo, Ginni Thomas, and Crow were all involved with Liberty Central, a
Tea Party-themed dark money group formed in 2010. The organization was
initially funded with $500,000 from Crow, according to _Politico_
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while Leo served
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its board of directors. The organization paid $120,000
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Ginni Thomas.

Over the past two decades, Crow has frequently provided the Thomas
family with private jet and superyacht trips that Clarence Thomas
failed to disclose. Crow also bought a house
[[link removed]] owned
by Thomas and allowed his mother to live there rent-free, and paid at
least two years of boarding school tuition
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Thomas’ grandnephew whom the justice said he raised “as a son.”

Thomas’s fellow conservative on the court, Scalia, had also flipped
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being one of _Chevron_’s staunchest defenders
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be overturned.

The largesse that flowed to Thomas was part of a larger movement to
pack the court with the kinds of justices who would throw out
longstanding precedents like _Chevron_.

As President Donald Trump’s judicial adviser, Leo helped select
three of the court’s six conservative justices — while his dark
money network simultaneously spent tens of millions to boost their
confirmation campaigns

At least two of those justices, Neil Gorsuch and Brett Kavanaugh, were
on record publicly opposing the _Chevron_ doctrine.

When Gorsuch was nominated to replace Scalia in 2017, his hostility
to _Chevron_ deference was a key issue
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congressional questioning. As a lower court judge, Gorsuch had penned
an infamous opinion calling _Chevron_
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judge-made doctrine for the abdication of the judicial duty.”
Gorsuch would not only be to the right of Scalia on _Chevron_, but
also could push the court’s existing conservatives to overturn the
doctrine.

“Gorsuch may be the one to bring the court together on fundamental
questions of administrative power that have sparked so much
controversy and divisiveness in recent years,” corporate lawyer
and conservative
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Grossman told
[[link removed]] _Reuters._

The next Trump appointee, Kavanaugh, also opposed
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Leo told
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New York Times_ that reining in executive branch agencies was
becoming a key priority for the conservative court: “It’s the next
step in the national debate about the proper role of the courts. The
administrative state is 75 years old,” he said, referring to the
Administrative Procedures Act. “It’s become a huge, glaring
issue.”

Trump’s third appointee, Amy Coney Barrett, had not indicated
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clear position on _Chevron_ in previous cases, and declined to
reveal her position on _Chevron_ during her confirmation hearing.
“As a sitting judge and as a judicial nominee, it would not be
appropriate for me to offer an opinion on abstract legal issues or
hypotheticals relating to that precedent,” she said
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Club for Growth, the nonprofit co-founded by Crow, published a memo
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the issue of Barrett’s position on “_Chevron_ & Administrative
Deference,” which noted: “If Judge Amy Coney Barrett were seated
on the Supreme Court, her judicial philosophy would have a positive
impact on limiting agency overregulation.”

Club for Growth spent $5 million
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Barrett’s confirmation.

Leo’s Network Lobbies To Kill Chevron

Thomas’ reversal on the _Chevron_ doctrine — and the
conservative movement’s success in stacking the court — is more
relevant than ever: Last week, justices voted to hear a case that
could kill the doctrine outright.

The case, _Loper Bright Enterprises v. Raimondo, _deals with a
Commerce Department rule that stipulates how fishery inspectors are
paid. But the substantive issue in the case is whether the Supreme
Court should overturn _Chevron_ — as a slew of Leo-backed groups
is lobbying the court to do.

The New Civil Liberties Alliance, which received
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million in 2020 from Leo’s network, filed
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brief supporting _Loper Bright Enterprises_. Leo’s group
additionally contributed $350,000
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2020 and again
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2021 to the Independent Women’s Forum. That organization’s
affiliate, the Independent Women's Law Center, filed its own
supportive brief
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the case.

Leo’s network donated
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million between 2020 and 2021 to Advancing American Freedom, a
nonprofit led by former Vice President Mike Pence that submitted
[[link removed][%E2%80%A6]20Bright%20Enterprises%20et%20al%20v%20Gina%20Raimondo.pdf] a
brief in _Loper Bright Enterprises_.

The Leo network has been the longtime top financier of the Republican
Attorneys General Association, which elects GOP attorneys general. In
December, 18 Republican attorneys general filed
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brief in _Loper Bright Enterprises_ supporting the petitioners.

The Manhattan Institute, where Crow’s wife is on the board
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also filed
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amicus brief asking the court to hear the case designed to
overturn _Chevron_.

_JULIA ROCK is a staff reporter at The Lever _

_ANDREW PEREZ is Senior editor and reporter at The Lever covering
money and influence. Andrew was previously a reporter at MapLight and
International Business Times. His work has appeared in ProPublica and
HuffPost._

_THE LEVER, formerly known as The Daily Poster, is a
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