It is shocking but not especially surprising news that Virginia (Ginni) Thomas, the wife of Supreme Court Justice Clarence Thomas, was secretly paid tens of thousands of dollars in 2012 by a political-advocacy group that not long after submitted a brief in a case that was before the Court. The hidden transfer of funds, which was disclosed last week in an investigative report by the Washington Post, did not, as the columnist Ruth Marcus subsequently put it, “have the aura of an ordinary business transaction.”
But we are learning that such payments actually have been “ordinary business” on the Court. In fact, as I reported last year, similar but even larger undisclosed payments were made to Ginni Thomas in 2017 and 2018. During those two years, a conservative nonprofit group, headed by Frank Gaffney, a defense hawk known for promulgating anti-Muslim conspiracy theories, paid a firm she runs, Liberty Consulting, upward of two hundred thousand dollars for unspecified work, at a time when Gaffney had business before the Court. Those payments are visible in tax documents that were filed by Gaffney’s group, the Center for Security Policy. But they are not evident in the financial disclosures for those years submitted by Justice Thomas. Nor was any note made of the financial relationship when Gaffney joined six other advocates in filing an amicus brief to the Court, in August, 2017, in support of Donald Trump’s travel ban, which restricted the entry of people from seven countries, most of them majority-Muslim. Gaffney’s brief argued that “the challenge of Islam must be confronted.”
Throughout the 2017 and 2018 Court terms, as the Justices considered various challenges to the travel restrictions, Justice Thomas consistently took a pro-Trump line. In June, 2018, he and four other Justices narrowly upheld the final version of the travel ban.
Almost as troubling as the details of these ethical lapses is the fact that neither of these payments to Ginni Thomas would be known today except for random happenstance brought to light by investigative reporters. Judges are required to publicly report outside income in their annual financial disclosures, including approximate amounts earned by their spouses. But there is no requirement that a spouse who owns a firm must reveal the identities of their clients, which could reveal potential conflicts of interest. As a result, there is no way for the public to know if a spouse’s business venture is serving as a backdoor for payments from an interested party to a Supreme Court Justice.
As numerous critics have now noted, only the Supreme Court exempts itself from the judicial code of ethics that binds federal judges. Chief Justice John Roberts has said that the Court takes its “guidance” from the judicial code set out by the U.S. Judicial Conference, the policymaking body of the federal court system. But, at the Supreme Court level, the financial-disclosure process, and decisions about whether to recuse from hearing a case, are left up to the Justices, under an honor system. They fill out annual reports, but there is no independent oversight or enforcement of them. Over the years, Justice Thomas has repeatedly failed to meet these minimal disclosure requirements, amending his statements only after watchdog groups and investigative reporters have exposed lapses. In his disclosures in 2017 and 2018, for instance, despite the six-figure payments from Gaffney’s group to his wife, he gave a curiously low value for her firm, claiming in both years that it was worth only between fifteen thousand and fifty thousand dollars.
When payments are made to a Justice’s spouse by a nonprofit group, as in the Gaffney group’s case, the original source of the funds is especially screened, because such groups aren’t required to disclose their funders. It remains unclear, for instance, where Gaffney’s nonprofit got the funds to hire Thomas’s firm. (Neither the Thomases nor Gaffney responded to interview requests from The New Yorker.) But according to the Center for Media and Democracy, which monitors nonprofit political spending, one of the largest donors to Gaffney’s organization in 2017 was a pro-Trump political group, Making America Great, which was chaired by the heiress Rebekah Mercer, who is one of Trump’s biggest backers. As a result of this financial daisy chain, it is likely that hundreds of thousands of dollars flowed undetected from Trump backers through Gaffney and on to the Thomases, as the Court was agreeing to hear legal challenges to one of Trump’s signature policies.
Given Justice Thomas’s conservative judicial record, it’s likely that he would have supported the Trump Administration’s travel restrictions, anyway. The same may be said of the case that the Post highlighted. In that instance—the landmark decision in Shelby County v. Holder, in 2012—Thomas joined a 5–4 conservative majority in rolling back voting-rights protections. The vote was consistent with Thomas’s past rulings, but a concurring decision he wrote was also in line with an amicus brief filed in the case by the Judicial Education Project, the group that had paid Ginni Thomas earlier that year. The funds, according to the Post, were funnelled through another company, the Polling Company, which at the time was run by the conservative pollster Kellyanne Conway.
Leonard Leo, a leader of the powerful conservative legal group the Federalist Society, and a longtime friend of the Thomases’, was at the time advising the Judicial Education Project. According to the Post, Leo explicitly directed Conway to “give” Ginni Thomas “another $25k,” and he emphasized that the paperwork should have “no mention of Ginni, of course.” Conway’s company sent Ginni Thomas the funds, and documents obtained by the Post described the purpose of the payment as “Supplement for Constitution Polling and Opinion Consulting.”
The Thomases declined requests for comment from the Post. But Leo, who is arguably the foremost legal activist on the right, overseeing a large and growing network of conservative nonprofits aimed at influencing the courts, defended the payments to Ginni Thomas, as well as the secrecy. In a statement to the Post, he said that her work for the nonprofit “did not involve anything connected with the Court’s business” and that it had been necessary to conceal the payments because they would have provoked negative publicity. “Knowing how disrespectful, malicious, and gossipy people can be,” he said, “I have always tried to respect the privacy of Justice Thomas and Ginni.”
Respect for judicial privacy is understandable, even commendable. But when it conflicts with the public’s interest in knowing whether dark money is tainting the justice system, the intent of the law is clear. The 1978 Ethics in Government Act—which was passed in the wake of the Watergate scandal—was designed to fight corruption. Gaming whether the fine print of the Act permitted Justice Thomas to conceal over the years hundreds of thousands of dollars’ worth of free vacations, travel on private jets and yachts, private-school tuition for family members, and free rent for his mother, all paid for by the Dallas real-estate billionaire Harlan Crow, as ProPublica disclosed, and to hide payments made to a spouse may be technically defensible, but it clearly defeats the law’s purpose. And whether it is technically defensible remains to be seen.
Justice Thomas has already acknowledged that he needs to amend the disclosures concerning his private jet travel—an admission made after the judicial conference updated the wording of the rules to explicitly spell out what virtually everyone else already understood. And he will also have to amend his disclosures to reveal the real-estate transaction concerning his mother’s house. Meanwhile, Senate Democrats are investigating whether Crow, who extended much of the most lavish “personal hospitality”—as Thomas described it—personally owned the jet, the yacht, and the resorts that Thomas stayed at, or whether these were owned by his corporation, which would strain the claim. The Democrats may investigate whether Crow complied with gift-tax regulations. A lawyer representing Crow, however, declined on Monday to comply with a request from Ron Wyden, the chair of the Senate’s Finance Committee, to provide a full accounting of Crow’s gifts to Thomas.
Gabe Roth, of the nonpartisan watchdog group Fix the Court, told me last year that, at the very least, Justice Thomas should be asked to amend his financial statements. Thomas already did so in 2011, after it became public that he hadn’t disclosed six hundred and eighty-six thousand dollars that his wife had earned while working at the Heritage Foundation, the conservative think tank, between 2003 and 2007. Beyond that, Roth said, “the Justices should, as a rule, disqualify themselves from cases in which a family member or the family member’s employer has filed an amicus brief.”
The emerging role of Leonard Leo in connection with these undisclosed gifts and payments sets off additional alarms. As a 2017 New Yorker profile put it, Leo, a central figure in the conservative legal movement, has yielded “extraordinary influence” over the makeup of the Supreme Court. Leo has been particularly close to Clarence and Ginni Thomas—they have been friends since at least 1991. In 2009, Leo became a director of a Tea Party political-advocacy group run by Ginni Thomas and funded in part by Crow. But it became so controversial, because of the conflicts it posed with Justice Thomas’s work, that Ginni Thomas left the organization, in late 2010, citing “distractions.” Leo’s previously unknown involvement in directing and concealing payments from the Judicial Education Project to her soon after raises a new round of questions.
In 2012, for instance, as these payments were being made, Leo was closely allied with the Becket Fund for Religious Liberty, a small Catholic-led nonprofit legal group that has litigated a number of landmark religious-liberty cases before the Supreme Court. (He became a director of the group in 2014, and serves on its board of directors.) In 2012, he was an “honorary vice chair” of the group’s annual fund-raiser. That year, the Becket Fund brought the momentous Hobby Lobby case, in which it successfully argued that corporations are entitled to religious freedom and therefore can exempt themselves from national laws that they deem violations of their beliefs. At issue was the mandate in the Affordable Care Act that required employers to provide their workers with insurance coverage for contraception.
It’s hard to assess whether Leo’s overlapping ties to this case and to the Thomases constituted improper influence, or its appearance. But his unusual access to multiple people who would decide its fate was evident in a surprise dinner that he hosted in Washington, D.C., in 2013, as the case was wending its way from Oklahoma, where the Hobby Lobby company is based, to the Supreme Court, which decided it the following year. Scott Pruitt, Oklahoma’s attorney general at the time, who filed a brief in support of Hobby Lobby, later described the dinner in a speech at Hillsdale College.
As Pruitt recalled, Leo had urged him to come to Washington to attend the Federalist Society’s annual gathering at the Mayflower Hotel. The two men had struck up a close political partnership. Pruitt was the head of the Republican Attorneys General Association, and another nonprofit group in Leo’s network, the Judicial Crisis Network, had just begun donating money to Pruitt’s group; the total sum would rise to $2.4 million over the next two years, according to the watchdog group Citizens for Responsibility and Ethics in Washington, or CREW.
Pruitt was impressed by Leo’s connections when he got to Washington. As he described it, Leo had suggested he stay in town an extra night to attend a dinner, but didn’t mention who the other guests might be. “Any time that Leonard asks you to go to dinner, you stay, because he feeds you well,” Pruitt said. But, as the Times reported, it wasn’t just the cuisine that dazzled Pruitt. When he reached his table, he found Justices Thomas and Antonin Scalia seated there. “We spent three hours talking about the Constitution and things that we were involved in,” Mr. Pruitt recalled. “It was a fabulous time.” ♦
