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Clarence Thomas apologists should take a lesson from Justice Kagan

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Now back to that “business before the court” bit Thomas casually tossed into his statement: That was simply not true. A case involving a firm linked to Crow did come to the court in 2005, when an architect was suing a Crow-linked real estate company for a copyright infringement. Since the court refused to hear the case, there isn’t a record of Thomas’ vote. But there also isn’t a record of Thomas recusing himself, which there would be if he had. That’s the most direct case.

But while Crow was cultivating his friendship with Thomas, he was also making a lot of friends in the vast right-wing web of dark money groups. He had—and has—his money in an array of groups that regularly file briefs with the court. Crow has served on the boards of at least three conservative groups that have lobbied the court in some very big cases, including the Club for Growth, the American Enterprise Institute, and the Hoover Institution, Stanford University’s conservative think tanks. These groups—using Crow’s money and board participation—have had their fingers in multiple cases before the court.

And they get results. The Lever has a great story on the tag-team of Leonard Leo, Federalist Society creator and dark money maven who shaped the current Supreme Court, and Crow, and how they were working the Thomases on one long-standing right-wing goal; overturning the “Chevron deference” doctrine that gives the executive branch deference over the courts when it comes to interpreting certain laws passed by Congress. The doctrine was first established in 1984 in Chevron U.S.A v. Natural Resources Defense Council. The environmental movement lost in that one: The court held that the Reagan administration could weaken clean air regulations. But the doctrine also gave Democratic administrations the power to stringently interpret and implement regulations.

Getting that precedent fully overturned would allow corporate America to flood the courts with challenges to how the government is enforcing laws covering everything from clean water to workplace safety, and has been a major project for all of the big dark money groups on the right.

And guess who flipped on Chevron between 2005 and 2020?

In 2005, Thomas wrote the majority opinion upholding the Chevron deference doctrine in a telecommunications case:

“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.

By 2015, Thomas was repudiating his own decision. “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,” Elbert Lin, a former Thomas clerk, wrote in 2017.

Here’s just part of what was happening between the Thomases, Crow, and Leo during those years:

In 2010, Crow bankrolled a dark money group led by Thomas’ wife, Ginni, that paid her $120,000. Leo was on the group’s board of directors. In 2012, Leo’s dark money network steered undisclosed consulting payments to Thomas’ 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 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 and allowed her to keep living there rent free and paid his grandnephew’s boarding school tuition.


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

That’s just all a big coincidence, right? That Ginni found a new income stream and she and Clarence found new best friends who loved them so much that they lavished them with millions of dollars worth of stuff? New best friends who also happened to have this side interest in reshaping how business is done in the U.S. and figured out capturing the judicial system was the most effective way to get there.

By 2020, Thomas had completely reversed himself, writing in a dissent on a case the court ultimately decided not to take that his 2005 decision “appears to be inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation.” He concluded “Chevron is in serious tension with the Constitution, the [Administrative Procedures Act], and over 100 years of judicial decisions.”

The court just agreed to take on a case that could do away with Chevron once and for all. Thomas’ position isn’t going to be a mystery.

Maybe Thomas came to this epiphany about his previous self through osmosis, palling around with Leo and Crow while they had their creepy portrait painted. The exchange of ideas —which had absolutely nothing to do with pending or potential Supreme Court cases!—while hanging out smoking cigars with his besties was enough to make him see the light. Or maybe, just maybe, it was his new extravagant lifestyle.


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