Category: The Law

5 Major Problems with ProPublica’s Latest ‘Ethics’ Hit Piece on Justice Clarence Thomas.

By Ken Klukowski

Lawyer who served in the White House and Justice Department.

There are five major problems with the latest so-called “ethics” attack on Justice Clarence Thomas, which this time is a hit piece from the leftwing ProPublica, attempting to kick Thomas off an upcoming Supreme Court case.

ProPublica has the vapors over the fact that Thomas flew on a private jet to a conference in Palm Springs in 2018 hosted by the network of Charles and David Koch, suggesting several ethics violations. ProPublica is legally wrong on every claim.

Two problems are that Supreme Court justices can speak at nonpartisan gatherings so long as there are no presentations to or from parties to a case currently pending before the Court, and the justice does not engage in fundraising.

First, Thomas did not present at the conference on any issues pending before the court, and no parties or lawyers on cases that were scheduled at the court made any presentations to him.

Second, although fundraising certainly takes place at such gatherings, so long as the justice does not ask for money, the fact that private citizens do so is not an ethics concern for a justice in attendance.

On various occasions when liberal justices like Elena Kagan and Sonia Sotomayor have spoken at events, fundraising people huddle about how to promote the justice’s name to raise more money off the event. But Kagan and Sotomayor violate no ethics rules when this happens, because they are not the ones engaged in fundraising.

Third, it is utterly irrelevant that the Koch Network supports filing briefs in a case currently before the court that would change the scope of the federal government’s regulatory law. Justices frequently speak at events hosted by groups that take positions on pending matters, and the upcoming case is no different.

That case, Loper Bright, asks the court to overrule a 1984 case named Chevron, where the court held that courts should defer to agency bureaucrats about whether regulations are consistent with a law passed by Congress, if Congress’s law is either silent or ambiguous about the precise legal question at issue in the regulation.

Chevron should be overruled because it is egregiously wrong and has led to terrible results. It upends bedrock principles of the rule of law for judges who defer to the almost-all-powerful government about the government’s claims as to the government’s own power over citizens and companies. If anyone should get the benefit of the doubt, it should be the powerless ordinary citizen. But better yet, there should be no deference, and judges should just interpret the law and the regulations the same way they interpret any other law, regulation, or contract. (Full disclosure: I coauthored one of the many briefs in Loper Bright urging the Supreme Court to overrule Chevron.)

The left is panicking over Loper Bright. Chevron gives unelected bureaucrats enhanced power over the lives of private citizens on countless issues, from energy production, to transportation, to immigration, to transgenderism in schools, to firearms. It hobbles the ability of courts to require Congress to legislate clearly and for public policy to be made by officials accountable to the people. Overruling Chevron would restore transparency and good government, so the left is trying to disqualify conservative justices like Thomas from being able to vote on it.

Fourth, ProPublica’s authors are again ignoring judicial standards on personal hospitality. During the time in question (2018), if private individuals are a friend of a Supreme Court justice and offer the justice a seat on a private airplane, that form of personal hospitality is ethically allowed. Liberal justices like the late Ruth Bader Ginsburg and the retired Stephen Breyer frequently accepted such hospitality.

Fifth, even federal judges on lower courts that are already subject to the ethics code that Senate Democrats are trying to foist on the Supreme Court – a code that would be unconstitutional, because the Supreme Court is a coequal branch of government. In May 2005, Judge Ray Randolph – a highly respected judge on the powerful U.S. Court of Appeals for the D.C. Circuit – conferred with ethics counsel at the Judicial Conference regarding a similar trip.

The judicial ethics expert at the Judicial Conference responded that the trip did not even need to be disclosed. So even if the Supreme Court could be forced into a subordinate role to Congress, like the federal appeals courts are, such trips would still be permitted.

The left’s latest desperate attempt to smear Thomas – this one from ProPublica – appears to be yet another swing and miss. And the fact that it focused so heavily on gaslighting the American people about Loper Bright shows that it is just the latest attempt at reverse court-packing to disqualify conservative justices in a brazen attempt to manipulate the outcome of a Supreme Court case on government power.