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Buying Clarence


There is an argument — often used to poo-poo the Supreme Court ruling most campaign finance regulations illegal — that large donations just reward public officials for their ex ante beliefs rather than changing their votes, so it’s not that big a deal. But the reality is more complex. It’s true that the millions of dollars in undisclosed emoluments Clarence Thomas has received from wealthy ultra-reactionary donors didn’t turn him into a conservative. It can, however, have a material influence on what it means to be a conservative:

The ProPublica piece identifies two different phenomena. The first is Bohemian Grove, which is where the Kochs developed this relationship with Clarence Thomas over the years. And then, out of that relationship, came Thomas’ attendance at donor summits with the Kochs, where donors are promised that if they pay a bunch of money—hundreds of thousands of dollars—they will be able to attend this super exclusive event where Clarence Thomas speaks. And these events include luxury travel on private jets for Thomas. It’s clearly a fundraiser. These events and flights should have been disclosed, and they weren’t.

That doesn’t exactly build up trust for Justice Thomas. And it doesn’t encourage faith that his jurisprudence is rooted exclusively in his own views of the Constitution and the law. Thomas loves to say he’s not evolving, right? He loves to say he’s steady as a rock. But there’s one area where that has really not applied, which is this issue of Chevron deference—deferring to administrative agencies and their reasonable interpretations of ambiguous federal laws. For years, Thomas was a strong supporter of Chevron deference and even wrote a major decision expanding it. But after he was cultivated by the Kochs and became their close friend, he drifted away from Chevron, ultimately renounced and repudiated Chevron deference and is now on the brink of issuing or joining a decision that will overturn Chevron deference this coming term, in a case that is partly funded and supported by the Koch network.

Am I saying he was bribed? No. I don’t think that he got a giant bag of cash in return for renouncing Chevron. But I do think that he was very consciously initiated into the kind of social circles where everyone he spoke with would make it clear that they thought Chevron deference was atrocious and extreme regulatory overreach, and that all of the incentives in his life suddenly ran toward getting rid of Chevron, even though he had cleaved to it for so long.

Thomas might say “I ain’t evolvin'” to make it clear that he would not drift to the left like Blackmun or Souter. But his jurisprudence has certainly evolved to match the preferences of wealthy Republican donors, and it’s hard to imagine it’s a coincidence that they have directly provided him the luxurious lifestyle to which he clearly believes himself to be entitled.

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