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Clarence Thomas Is Smack Dab In The Middle Of The Regulatory Fight

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Poor Clarence Thomas. After graduating from Yale law school, he was deeply offended that all of his classmates were getting big bucks offers from major law firms while he was looking at an unpaid internship at a legal aid society. It was all the fault of affirmative action. It was all the fault of white privilege. It was all the fault of the corrupt American Bar Association. It never occurred to Clarence to question whether his own limited intellectual gifts might be responsible for the lack of offers from prestigious law firms.

This seething cauldron of grievance settled into a quiet life as a political hack. According to Wikipedia, he was appointed as an assistant attorney general in Missouri before entering private practice in that state. In 1979, he became a legislative assistant to Missouri senator John Danforth. He parlayed that assignment into becoming an assistant secretary for civil rights at the Department of Education in 1981.

Ronald Reagan appointed him to chair the Equal Employment Opportunity Commission in 1982. That’s where he crossed paths with Anita Hill. President George H. W. Bush nominated Thomas to the United States Court of Appeals for the District of Columbia Circuit in 1990. He served on that court for 19 months before being anointed to the US Supreme Court to replace Thurgood Marshall, the man who argued the historic Brown Vs. Board of Education case before the Supreme Court in 1954.

So far during his 30-plus years on the Supreme Court, Thomas has written no significant decisions and has become famous during oral arguments for sitting quietly in his chair while the other justices pepper appellants with questions.

But Clarence has not been so diffident off the bench. As multiple investigations by ProPublica have revealed, he has cozzied up to any number of billionaires, many of whom are donors to far right causes. He accepted free vacations and private air travel from them, as well as other gifts. His wife Ginni is a superstar in the constellation of ultra right wing politics, and is a fierce defender of the mob that assaulted the Capitol on January 6, 2021. Thomas says his wife’s activities have no effect on his deliberations, a statement that every married man knows is a brazen, bold-faced lie.

Clarence Thomas And Charles Koch

Clarence Thomas
Image credit: Open source

In the most recent revelations from ProPublica, it turns out that Clarence has allowed himself to be a shill for Charles Koch and his fundraising efforts among America’s super-wealthy. And now, he may very well cast the deciding vote in a little-known case before the court, entitled Loper Bright Enterprises v. Raimondo

Loper Bright Industries is a New Jersey fishing company. The National Marine Fisheries Services has enacted a number of regulations for offshore fishing fleets, among them a rule requiring certain fishing boats to carry federal compliance monitors to enforce regulations. The nub of the dispute is that the rule makes the boat owners pay for the people who are doing the monitoring.

The government says the authority to do so is implied in the Magnuson-Stevens Act, which was passed by Congress in 1996 to provide additional federal protection to areas of the ocean that are essential spawning grounds for fish and other aquatic animals.

The Implications Of “Implied”

The fight is over that word “implied.” The industry argues that if Congress intended to grant such authority to the NMFS, it should have said so specifically. Opponents argue that the Supreme Court should not issue a decision that makes federal courts the arbiters of every jot and tittle of the federal rule making process.

The struggle is all about the administrative state, which began primarily with FDR and the New Deal. It is all well and good that Congress should be clear when it makes laws, but in practice, the legislative branch has been only too happy to let administrative agencies do their dirty work for them.

That gives them political cover so if there are complaints, Congress can say, “We didn’t do it. The bureaucracy did it.” Are you seeing the outlines of the whole “deep state” conspiracy scenario here, a cabal of faceless functionaries beavering away in secret to implement the dictates of George Soros, the most hated man in all of right wing nut job theology?

The dispute over an obscure federal statute has since exploded into a matter of great interest to industry groups and environmentalists, with the latter warning that if the Supreme Court sides with the plaintiffs, it will be much more difficult for federal agencies to implement climate regulations.

The Amicus Curiae Industry

There’s a new industry in Washington, DC — writing so-called amicus curiae briefs for the Supreme Court. In Latin, the phrase means “friend of the court.” In practice, it’s an opportunity for special interests to lobby the court on behalf of their clients. The Supreme Court now gets dozens, if not hundreds, of amicus briefs trying to push the court this way or that on issues.

In the Loper Bright case, four Democratic senators — Sheldon Whitehouse (R.I.), Mazie Hirono (Hawaii), Dianne Feinstein (Calif.), and Elizabeth Warren (Mass.) have filed an amicus brief that focuses on the attention the case has attracted from right wing and corporate funded groups.

“This case is the product of a decades-long effort by pro-corporate interests to eviscerate the federal government’s regulatory apparatus, to the detriment of the American people,” the lawmakers wrote, noting that a number of groups connected to the Koch network and other powerful right wing organizations have submitted briefs in support of the plaintiffs in Loper v. Raimondo.

“For example, amici The Buckeye Institute, Cato Institute, Competitive Enterprise Institute, Landmark Legal Foundation, Mountain States Legal Foundation, National Right to Work Legal Defense Foundation, New Civil Liberties Alliance, and Pacific Legal Foundation have all received hundreds of thousands, and sometimes millions, of dollars from Donors Trust and Donors Capital Fund — two donor-advised funds that allow ultra-wealthy interests to direct funding anonymously.”

“The Buckeye Institute, Cato Institute, Competitive Enterprise Institute, New Civil Liberties Alliance, and Pacific Legal Foundation have also received substantial funding from the Koch family foundations — another top ten funder for the climate change counter-movement,” the senators added. “The court should proceed cautiously before contributing to their sought-for degradation of our American regulatory system.”

Revisiting The Chevron Doctrine

At the center of Loper v. Raimondo is the so-called Chevron doctrine, a decades-old administrative law principle that says courts should defer to a federal agency’s “reasonable” interpretation of a statute when the law’s language is ambiguous. Common Dreams reports that the plaintiffs in the case and their corporate-backed supporters are calling on the Supreme Court to either weaken the Chevron doctrine or overrule it entirely.

In its amicus brief, the Cato Institute — which was co-founded by billionaire oil tycoon Charles Koch — declares that the Chevron doctrine is “unconstitutional and ahistorical” and has “wreaked havoc in the lower courts upon people and businesses.”

The Democratic senators counter in their brief that the Chevron doctrine has been critical in “allowing Congress to rely on agency capacity and subject-matter expertise to help carry out Congress’ broad policy objectives. Administrative regulations reined in dangerous industry activities and our society became safer and more prosperous.”

A ruling that effectively casts the principle aside, the lawmakers argued, “would not just conflict with Congress’ well-established policy making desires; it would erode the separation of powers by shifting policy making power from Congress and the executive to the unaccountable judiciary.”

The four Democratic senators stressed that “the assault in this case on the regulatory system is not an isolated effort. For years, regulated interests have funded a full scale campaign to delegitimize and dismantle federal regulations. The court should proceed cautiously before contributing to their sought-for degradation of our American regulatory system.”

The Nub Of The Argument

Why all this kerfluffle over marine monitors? Because, if the court sides with the company, the entire administrative agency system begins to crumble — one of Charles Koch’s most cherished dreams for decades. Koch is the son of Fred Koch, a co-founder of the John Birch Society. Fred invented a process for refining gasoline almost a century ago, but could not get approval for it in America. So he took his ideas overseas, where he used them to make fuel for Josef Stalin and Adolf Hitler. He lived his entire life with a deep, abiding hatred of a government that spurned him, a sentiment that no doubt got passed along to his progeny.

The vision of the right wing oil barons can be seen in the political platform of Florida’s governor, Snarlin’ Ron DeSantis, who says if he is elected president, he will

  • withdraw the US from the Paris climate agreement
  • end all commitments for the country to cut net greenhouse emissions to zero
  • streamline the environmental review process for energy and infrastructure projects
  • eliminate the Department of Energy
  • cancel the Global Methane Pledge, a joint goal with the European Union
  • expedite approval for more pipelines
  • prioritize “reliable” energy sources such as natural gas, coal, nuclear power, and hydropower
  • allow mining and extraction of oil, gas, coal, uranium, and other minerals on federal lands
  • propose substantial investments in critical minerals, including the establishment of a Critical Mineral Strategic Reserve
  • ban government pension funds from considering factors like environmental, social, and governance considerations when making investment decisions.

And there you have it. The decision in Loper could accomplish what the lunatics on the right have been after for decades — shrinking the size of government until it is small enough to drown it in the bathtub. Oh, what a glorious time it will be! Corporations unfettered to pursue their dreams of untold riches without the nagging constraints of environmental regulations designed to protect the Earth and those who live on it.

No Clean Air Act. No Clean Water Act. No Administrative Procedures Act. No National Environmental Policy Act. Nothing to stop business from doing what business does best — pillaging the Earth for profit.

Clarence Is Right In The Middle Of This

One of the votes in the Loper case will be cast by Clarence Thomas, a man who has sold his soul to Charles Koch and his cabal of oil and gas friends. There used to be a definition for conflicts of interest that admonished those in positions of public trust to avoid impropriety or the appearance of impropriety. Yet ProPublica documents that Thomas — who has proven to be little more than a grifter willing to sell his soul to the highest bidder — allowed himself to be used by Charles Koch to raise money for his causes.

If any other federal judge did the same, they would be disciplined, but the US Supreme Court has no ethics code. Whether Thomas thinks his attendance at Koch-sponsored fundraisers (he was flown in by a private jet that he did not pay for) is perfectly OK, it does carry the appearance of impropriety. And yet he will now sit in judgement on a case that is vitally important to Charles Koch and his oil-soaked cronies.

Thurgood Marshall was a giant in the annals of constitutional law in America. In comparison, Clarence Thomas is a cipher, a nobody who will soon be forgotten. His vote in the Loper case will forever doom him to a place of ignominy in the history of American jurisprudence.

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Steve Hanley

Steve writes about the interface between technology and sustainability from his home in Florida or anywhere else The Force may lead him. He is proud to be "woke" and doesn't really give a damn why the glass broke. He believes passionately in what Socrates said 3000 years ago: "The secret to change is to focus all of your energy not on fighting the old but on building the new."

Steve Hanley has 5246 posts and counting. See all posts by Steve Hanley