Last week, several new revelations surfaced about Justice Clarence Thomas and the gifts, benefits, and consulting fees he has garnered from right-wing judicial activist Harlan Crow, and the architect of right-wing judicial activism, Leonard Leo. In addition to ProPublica’s reporting that Crow paid private school tuition for Thomas’ grandnephew, the Washington Post reported last week that Leonard Leo had consulting fees directed to Ginni Thomas in 2012 from a group to which he had ties. He directed pollster Kellyanne Conway to “give” Ginni Thomas “another $25K,” urging that the attendant paperwork have “No mention of Ginni, of course.” Those who continue to insist that Crow and Leo have no business before the courts tend to forget, as Sen. Sheldon Whitehouse continues to emphasize, that their business is the courts. The same front group that paid Ginni Thomas in 2012 filed an amicus brief later that year in Shelby County v. Holder. Thomas was the deciding vote to radically constrict voting rights in that opinion.
On this week’s Amicus podcast, Dahlia Lithwick tried to get a better sense of what the “business of the court” truly encompasses. She spoke with Lisa Graves, creator of True North Research. Graves has spearheaded several major breakthrough investigations into those who are distorting American democracy and public policy. Their conversation has been edited for length and clarity.
Dahlia Lithwick: Why is it that we don’t like multimillionaire friends of Supreme Court justices funding their lifestyles, their trips, their travel, and seemingly, uh, their wards’ tuition?
Lisa Graves: It’s because we in America believe that we should have a fair and independent judiciary. And I think that the code of conduct for United States judges that applies to every other judge in the federal system other than the U.S. Supreme Court really makes it clear:
An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved …
A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.
This really goes to the standard that applies to all judges in America, apparently except for, in any enforceable way, to the Supreme Court. This creates an appearance of bias, an appearance of impropriety, and I think reasonable people from both parties—all parties, no parties—on hearing about Clarence Thomas’ relationship with Crow, the trips, the tuition, and more, are rightfully shocked that any Supreme Court justice, let alone a judge on any court, would engage in such behavior.
The twin claims that Justice Thomas has used to defend himself are that he’s super, super, really good, tight besties with the Crows, so that makes it OK. And also, that somebody told him early in his career that he doesn’t need to disclose the stuff. Do either of those two claims solve the problem you just raised? I just want to point out that Justice Abe Fortas resigned from the court for taking, what, $15,000 to give some lectures at a college?
Yes. It’s astonishing. For Clarence Thomas to assert that people told him he didn’t have to disclose this—I think he should have to respond under oath, under penalty of perjury, and name each and every person in government or out of government who told him that he did not have to provide public disclosure of these sorts of gifts, particularly the gift of travel on private jets or Harlan Crow’s luxury yacht, because thousands of people employed by the federal government routinely follow those rules. The rules allowing for personal hospitality of a close friend are described in the instructions to comply with that statute. As you know, a meal, like a birthday meal from a friend or a small gift, is exempt—but not travel. Private jets, private yachts are not considered gifts of hospitality like a dinner. These are gifts; they’re valuable gifts. And they really put a stain on the court and on the integrity of the court.
On this question of “we’re just friends”: They’re not just friends. Let’s look at the cases pending before the court this term. Right now, there are three cases where the Manhattan Institute has submitted amicus briefs to this Supreme Court, including the student debt case. Kathy Crow—one of Clarence and Ginni Thomas’ “best friends”—is a trustee. So basically, she’s a funder and a director of the Manhattan Institute. Has Clarence Thomas recused from the cases involving the amicus brief submitted by his best friend? No.
I think there are a lot of issues at stake here, including what’s been uncovered about Harlan Crow’s having business before the court. But it’s also the case that Harlan Crow isn’t just a billionaire. He’s a billionaire who has spent a lot of money trying to influence law in this country and influence who wins offices, including who gets on the Supreme Court. In fact, Harlan Crow was a donor to one of the groups that helped spend money to get John Roberts and Samuel Alito onto the Supreme Court. So he has a deep and intense interest, it seems, in what’s happening with this court and who is on this court. And now he’s been spending years rewarding someone on the court.
I do have to point out that Mark Paoletta tweeted this morning in defense of Clarence Thomas, [saying that] going after, uh, Thomas’ grandnephew, Mark Martin [is predatory]. Why sweep this innocent kid into this evil media “gotcha” campaign? The Thomases are so generous, being punished here.
Paoletta is not just a good friend of the Thomases; he’s also a Thomas biographer. He’s involved in making the hagiographic documentary of Thomas. He’s Ginni Thomas’ lawyer on Jan. 6 issues. He’s testified before the House Judiciary Committee about why there should be no ethics rules. And, he’s in the picture with Harlan Crow and Leonard Leo and Clarence Thomas. This tweet is actually the smoking gun here about why nobody is just “friends” in this situation.
It is really stunning. We found that photo last year when we were in looking into the Ketanji Brown Jackson nomination. We were looking into the Judicial Crisis Network, the tool that Leonard Leo has deployed. It announced that it was going to spend $1.5 million on that Jackson nomination to try to stop her. When the ads came out, the ad was basically that Jackson doesn’t like Thomas, but Thomas is great. He’s so great. Here’s a biopic about him. So we looked into the biopic and we found that it was actually underwritten by Harlan Crow, and others. And in looking for photos of Harlan Crow with Thomas we found that photo of the painting that shows Harlan Crow with Clarence Thomas, with Leonard Leo, with Mark Paoletta. And also Bo Rutledge. But Mark Paoletta has been a defender of Thomas from the get-go.
One of the things that struck me is that as the ProPublica reporters note, Thomas previously disclosed gifts of tuition—until it came to Harlan Crow. He hid that. Second of all, Paoletta refers to a clause within the rules regarding gifts, that rules involve whether you declare someone to be a dependent on your taxes. And we haven’t seen Clarence Thomas’ taxes to know whether he declared his grandnephew, who was living with him, who Paoletta says he was spending a lot of money on, as a dependent. But even regardless of that, this goes to the appearance of impropriety. This is tuition that costs $75,000 a year. Most Americans could not afford that tuition. Clarence Thomas could, in part because of the money that he receives as a Supreme Court justice and the money his wife has received from the undisclosed donors that have funded her pay from the right-wing infrastructure. But they chose not to. They chose to have Harlan Crow pay for that child’s tuition.
We again learned this week that Leonard Leo is part of this pipeline between the Federalist Society and big donors and their efforts to reshape the courts. Leo got a $1.6 billion donation [from a manufacturing tycoon]. Once again, the news of what Leo involves himself in and that whatever else he is overseeing proves the Federalist Society is not just a debate society, as he and others have long claimed.
There’s been a series of major breakthrough investigations, including that original Washington Post investigation in May of 2019. That first really unmasked the initial scope of money that had been raised with Leonard Leo at the center of it to help capture the U.S. Supreme Court and other courts, and reshape the law, and roll back our rights.
The story of the Federalist Society is one of optics and reality. At the law school level, they do host debates. That is true. But the real operational function of the Federalist Society within the right-wing network is the operational imperative that their leaders described in a 1987 story by the New York Times, in which they basically said that the group had been founded just a few years earlier, but that within a decade they anticipated their people being in key positions in all branches of government, that that was their objective. And Leonard Leo has been the key operator in that objective of identifying people to help push into positions of power, including on the Supreme Court and state attorneys general. We know that the Republican Attorneys General Association has had a lot of donors over the years. One of those donors that has given more than $2 million since 2014 is Koch Industries. But you know who gave more? The Judicial Crisis Network, and its successor entity, the Concord Fund, and that’s Leonard Leo’s operation.
So the biggest funder of the Republican Attorneys General Association is the operation tied to Leo. And it’s interesting because reporters have documented that it’s a pay-to-play organization: If you give $15,000 to RAGA, you get this much access to state AGs. If you give $150,000, you get this much access. And then it says for $250,000, “details are available upon request.” So, you know, what kind of access, what kind of influence does Leonard Leo have for that amount of money?