That Perfectly Innocent Way One Funnels Money To The Spouse Of A Supreme Court Justice While Trying To Avoid A Paper Trail
This is a real problem for the integrity of the Court... not that anything will be done about it.

By KATHRYN RUBINO

Okay, if you thought the ethics scandals mounting against Supreme Court Justice Clarence Thomas were bad before, hooboy! Do I have a treat for you! (And by “treat” I mean an awful example of a corrupt government.)

Last night, the Washington Post released a blockbuster report detailing the tens of thousands of dollars the Federalist Society’s Leonard Leo had funneled to everyone’s favorite Supreme Court spouse, Ginni Thomas.

In January 2012, Leo instructed the GOP pollster Kellyanne Conway to bill a nonprofit group he advises and use that money to pay Virginia “Ginni” Thomas, the documents show. The same year, the nonprofit, the Judicial Education Project, filed a brief to the Supreme Court in a landmark voting rights case.

Leo, a key figure in a network of nonprofits that has worked to support the nominations of conservative judges, told Conway that he wanted her to “give” Ginni Thomas “another $25K,” the documents show. He emphasized that the paperwork should have “No mention of Ginni, of course.”

Leo as he wrote that line:

Nothing quite like creating a paper trail telling people not to create a paper trail. But also it is WILD, and yet somehow expected — given everything we know about the folks involved — that they’d be working so hard to funnel Ginni Thomas money from a group that was about to have business before the Court.

But what really wows is how out of pocket the excuses have become.

In response to questions from The Post, Leo issued a statement defending the Thomases. “It is no secret that Ginni Thomas has a long history of working on issues within the conservative movement, and part of that work has involved gauging public attitudes and sentiment. The work she did here did not involve anything connected with either the Court’s business or with other legal issues,” he wrote. “As an advisor to JEP I have long been supportive of its opinion research relating to limited government, and The Polling Company, along with Ginni Thomas’s help, has been an invaluable resource for gauging public attitudes.”

Of the effort to keep Thomas’s name off paperwork, Leo said: “Knowing how disrespectful, malicious and gossipy people can be, I have always tried to protect the privacy of Justice Thomas and Ginni.”

So government transparency is “disrespectful, malicious and gossipy”? Leo’s contempt for the American people is noted.

The landmark voting case referred to above is, of course, Shelby County. Clarence Thomas wrote a concurrence in the case that supported — though did not cite — the position of the Judicial Education Project. Which, honestly, given the history of his jurisprudence is not surprising, but it’s still a bad look for the nation’s highest court.

This is far from the only time Ginni’s advocacy work has butted up against the work of the Court. Her post-election advocacy made Clarence’s votes on matters related to the January 6th committee super suspect. She led a grassroots movement in support of Trump’s travel ban, worked for right-wing think tanks, and led efforts to defeat the Affordable Care Act. (And if the Thomas household just happens to make ~$700,000 in income for Ginni’s advocacy work that — oopsie! — Clarence forgets to report on disclosure documents, well, what can be done?) Though Ginni continues to deny she discusses her work with her husband, even though Clarence is her “best friend.”

But given the workaround Leo concocted, it does not appear that the arrangement would have triggered disclosure requirements:

For example, although justices must report the name of companies that pay their spouses, they are not required to report the names of the companies’ clients. In this case, even if there were such a requirement, it is not clear that the Judicial Education Project would have been listed as a client, because the fees intended for Ginni Thomas were to go through Conway.

Not that that’s a good thing! Indeed, it’s uniquely bad.

“The idea that Leonard Leo, who has a passionate ideological interest in how the court rules and who has worked hard for years to advance that interest, could pick up the phone and generate substantial compensation to Virginia Thomas, which also benefits Clarence Thomas — that idea is bad for the country, the court and the rule of law,” [NYU Law professor Stephen Gillers] said. “It’s not the way the Supreme Court should do its business or allow its business to be done.”

The effort to keep Ginni Thomas’s name off paperwork makes the arrangement seem “more egregious,” said [Law professor Kathleen Clark of Washington University].

And now comes time for the daily reminder that no matter how corrupt or just plain wrong any of this seems, it probably doesn’t matter. Thomas has a lifetime appointment and the political will to remove him from office — which would require 67 senators — simply doesn’t exist. Hell, the will the create an enforceable ethics code doesn’t seem to exist and that would take fewer politicians deciding ethics is more important than the entrenched partisan politics of the status quo.

Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.