Thomas Reverses Himself

After revelations of the gifts and cash, Thomas’s 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 senator and former Supreme Court clerk Mike Lee (R) claimed 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 USA v. Natural Resources Defense Council, brought by environmental advocates to challenge the Ronald 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 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, 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 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 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 Internal Revenue Service (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 to hear an appeal and overturn Brand X. Leo’s dark money group donated $1 million in 2020 to the New Civil Liberties Alliance.

The Supreme Court voted not to take the case, with only Thomas dissenting.

“Although I authored Brand X, it is never too late to ‘surrende[r] former views to a better considered position,’” Thomas wrote, quoting 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’s 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 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 Bloomberg.

The Federalist Society, the conservative lawyers organization where Leo is cochair, was at the center of these efforts, publishing articles and touting theories undermining the Chevron doctrine and the administrative state. The American Enterprise Institute (AEI), where Crow sits on the board 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 by AEI.

A 2014 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 reported last week that Leo steered payments to Thomas’s wife, Ginni, through a polling company run by Donald 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, while Leo served on its board of directors. The organization paid $120,000 to 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 owned by Thomas, and allowed his mother to live there rent-free, and paid at least two years of boarding school tuition for Thomas’ grandnephew whom the justice said he raised “as a son.”

Thomas’s fellow conservative on the court, Scalia, had also flipped from being one of Chevron’s staunchest defenders to suggesting it 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 long-standing precedents like Chevron.

As President 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 in congressional questioning. As a lower court judge, Gorsuch had penned an infamous opinion calling Chevron “a 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 commentator Andrew Grossman told Reuters.

The next Trump appointee, Kavanaugh, also opposed Chevron. Leo told the 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 a 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.

Club for Growth, the nonprofit cofounded by Crow, published a memo on 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 boosting Barrett’s confirmation.

Leo’s Network Lobbies to Kill Chevron

Thomas’s 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 $1 million in 2020 from Leo’s network, filed a brief supporting Loper Bright Enterprises. Leo’s group additionally contributed $350,000 in 2020 and again in 2021 to the Independent Women’s Forum. That organization’s affiliate, the Independent Women’s Law Center, filed its own supportive brief in the case.

Leo’s network donated $1 million between 2020 and 2021 to Advancing American Freedom, a nonprofit led by former vice president Mike Pence that submitted 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, eighteen Republican attorneys general filed a brief in Loper Bright Enterprises supporting the petitioners.

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