U.S. Supreme Court Justice Clarence Thomas is receiving renewed media attention following the publication of a ProPublica report alleging that he participated at least twice in donor meetings orchestrated by billionaires libertarians Charles and David Koch.
However, according to ProPublica, this undeclared activity could not only be in violation of federal laws, but could have repercussions, in the future, on issues of prime importance brought to the attention of the Supreme Court, where it seat.
“This places [le juge] Thomas in the extraordinary position of having served as a fundraiser for a network that has brought cases to the Supreme Court, including one of the most closely watched of the upcoming legislature,” it says.
The case in question is that of the Chevron decision (Chevron c. NRDC), decision rendered in 1984 and whose importance is comparable to that of Roe v. Wade on abortion.
In summary, this case indicates that courts must be very careful before questioning the decisions of government agencies. In the United States, once laws are promulgated, agencies ensure that the rules for implementation are defined.
Chevron’s lawsuit against the Natural Resources Defense Council (NRDC) over environmental protection issues prompted the decision.
The decision has since been challenged several times in the Supreme Court. A decision rendered in 2005 broadened the powers of the agencies and it was Judge Thomas who signed the majority opinion. Since then, he has made a 180-degree turn in this area.
However, the Chevron decision will be before the Supreme Court again in 2024. The court agreed to hear the case Loper Bright Enterprises v. Raimondo, where lawyers from the Koch network sit with the plaintiffs and want to demonstrate that it is Congress and not administrative agencies that make the laws.
But in what capacity?
According to Stéphane Beaulac, full professor at the Faculty of Law of the University of Montreal and specialist in international law and constitutional law, it will be necessary to see in what capacity the lawyers of the Koch network will intervene.
PHOTO SCOTT EELLS, BLOOMBERG ARCHIVES
Billionaire David Koch, in 2012
“Are these lawyers a party in this litigation with a very clear interest in gaining or losing in relation to an amount in damages? Or do they not want to do what we call an intervention? When a case reaches the highest court in the country, the court, in order to have as much information as possible to make the fairest decision, allows groups to intervene. It is also allowed in Canada. »
He himself had requested intervention in the case involving Alexandre Bissonnette, the killer of the great mosque of Quebec, brought before the Supreme Court, which had ruled that consecutive prison sentences are unconstitutional.
“So if these lawyers are allowed to intervene [sans être partie prenante]it greatly puts into perspective what the judge is accused of,” he says.
On the other hand, indicates Mr. Beaulac, this does not excuse the fact that Judge Thomas collects highly questionable situations. Recall that another journalistic investigation made public his long friendship with real estate mogul Harlan Crow, who paid for his son’s university studies and bought a house belonging to his mother.
Obviously, this man must not have gotten an A+ in his law and ethics class when he was in school. If he understands the principles, he does not apply them.
Stéphane Beaulac, full professor at the Faculty of Law of the University of Montreal
From a broader perspective, Mr. Beaulac also recalls that the judges of the Supreme Court of the United States are not accountable to anyone. “It is well known and very unfortunate that the justices of the Supreme Court of the United States are not subject to a code of conduct. It’s absurd,” he said.
Elsewhere in the world, including Canada, judges of the country’s highest court are subject to rules. And so are judges in US federal courts. Moreover, when ProPublica submitted Judge Thomas’ story to a former federal judge, the latter replied: “I would have received mail initiating disciplinary proceedings. »
Clarence Thomas’ last appearance at a Koch network conference in Palm Springs, California, was on January 25, 2018. The judge never reported this theft on his annual list of interests, which could constitute a violation of the laws federal law requiring judges to report gifts received, says ProPublica. But, the publication adds, it is not known who paid for the trip.
Spokespeople for the Koch family said Justice Thomas was not present for fundraising activities and was within his rights, like other justices before him, to promote a book. to the national conversation or to deliver a speech.