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Congresswoman Chellie Pingree (D-Maine) and 49 of her Congressional colleagues today sent a letter to Supreme Court Justice Clarence Thomas demanding he recuse himself from the upcoming Loper Bright v. Raimondo case, and any other case challenging the Chevron deference doctrine, following ProPublica’s investigative reporting that revealed Justice Thomas’ secret participation in donor events organized by the Koch Network. The plaintiffs in Loper Bright Enterprises v. Raimondo are represented by staff attorneys for the Koch Network in the attempt to overturn Chevron’s protections for government agencies. Due to these recent revelations, the Members of Congress assert that Justice Thomas has an obligation to prevent this conflict of interest by recusing himself from Loper Bright Enterprises v. Raimondo due to his close personal and financial relationship with Charles and David Koch.

“On Friday, ProPublica published a report that alleged you have attended at least two Koch donor summits over the last several years,” wrote the members. “During one of those summits in January 2018, you were purportedly flown to Palm Springs, California – a flight you did not disclose on your annual financial disclosure form – to attend a private dinner for the Koch network’s donors. According to the report, you were specifically brought to the fundraising event to speak ‘in the hopes that such access would encourage donors to continue giving.’”

In the absence of a Code of Conduct that applies to Supreme Court Justices, recusal from cases in which a justice may have a vested interest is the only mechanism to ensure that the Court’s decisions are not tainted by conflicts of interest.

“The allegations against you regarding your attendance at these fundraising events demonstrate unambiguously unethical behavior that is unacceptable for a judge at any level,” the members continued. “Here, the Kochs — political activists that you have personally helped fundraise for and personally financially benefitted from while their crusade to overturn to Chevron was public and well-known — are a party to this case. If you do not recognize that your behavior disqualifies you from ruling on such a consequential case and you do not recuse yourself, it will do irreparable harm to the Court’s credibility and to the public’s faith in the impartial rulings of the entire federal judiciary.”

Tiffany Muller, President of End Citizens United // Let America Vote said, “Justice Thomas’ flip-flop on Chevron is not based on a legal evolution; rather, he’s been showered with gifts and money from the Koch network, effectively buying his allegiance. We join Congressman Goldman’s call for Justice Thomas to recuse himself from the pending Loper Bright Enterprises v. Raimondo and any future case that could threaten to overturn Chevron. If he doesn’t, he’ll further diminish whatever credibility the court has left and set a dangerous precedent.” 

Accountable.US president Caroline Ciccone said, “It was Justice Clarence Thomas’s decades-long relationship with billionaire benefactor Harlan Crow that sparked the Supreme Court corruption crisis in the first place. Now, new revelations exposing Justice Thomas’s secret participation in Koch network events raise serious questions regarding the justice’s ability to remain impartial as he presides over a critical case involving Koch staff attorneys. Given these glaring conflicts of interest, Justice Thomas must recuse himself from Loper and any other cases that involve Koch network interests — and Chief Justice Roberts must take the appropriate steps to ensure that Thomas does so. We need urgent accountability to restore credibility and integrity to our nation’s highest Court.”

Earlier this year it was revealed that Justice Clarence Thomas failed to disclose gifts and travel from political activist and billionaire Harlan Crow including at least one trip valued at over $500,000. Reports have also revealed that Crow bought properties from Justice Thomas and his relatives for at least double what Justice Thomas had said those properties were worth. Justice Thomas’ family received up to $750,000 in income yearly from a firm that has not existed since 2006.

Justice Thomas’ pattern of unethical behavior dates to at least 2011, when it was revealed that he had failed to disclose employment details for his wife, Virginia Thomas, despite her earning over $686,000 from a conservative think tank, income from a conservative college, and reimbursements for trips to speak at law schools.

It has also recently come to light that Justice Alito accepted extravagant gifts from major conservative donors including Paul Singer, a hedge fund billionaire who has repeatedly asked the Court to rule on his business dealings. The allegations that Justice Alito accepted a paid-for vacation that totaled hundreds of thousands of dollars from Leonard Leo, who had recently played a significant role in Justice Alito’s confirmation process, further serves to undermine the legitimacy of the court.

Neither Justice Thomas’ nor Justice Alito’s potential ethical misconduct have been subject to a public investigation, though the Court has engaged in such investigations in the past, including following the Dobbs decision leak.

Prior to the recent revelations detailing Justice Thomas’ and Justice Alito’s ethical lapses, 53 percent of Americans had little or no trust in the Supreme Court to operate in the best interests of the American people.

Pingree has repeatedly called on Chief Justice John Roberts to establish an ethics counsel within Supreme Court to standardize ethics procedures, advise justices on ethical issues, prevent ethical misjudgments. Pingree is also a cosponsor of the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act and the Supreme Court Ethics Act—to bring accountability to the U.S. Supreme Court. 

Read the letter here and below. 

Dear Justice Thomas:

Recent public reports have yet again raised serious questions about ethical violations by you. In this particular case, your participation in political donor events hosted by the Koch network, as well as your surreptitious relationship with David and Charles Koch, requires you to recuse yourself from the upcoming Loper Bright Enterprises v. Raimondo case, in which the plaintiffs are represented by staff attorneys for the Koch network.

Fundraising Events with the Kochs

On Friday, ProPublica published a report that alleged you have attended at least two Koch donor summits over the last several years. During one of those summits in January 2018, you were purportedly flown to Palm Springs, California – a flight you did not disclose on your annual financial disclosure form – to attend a private dinner for the Koch network’s donors. According to the report, you were specifically brought to the fundraising event to speak “in the hopes that such access would encourage donors to continue giving.”

As you are no doubt aware, under Canon 5(A)(3) of the Code of Conduct for United States Judges, a judge should not “solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.” Additionally, consistent with Canon 4B(1), judges are advised “not to associate themselves with entities that are publicly identified with controversial legal, social, or political positions or that regularly engage in adversarial proceedings in the federal courts.” In short, your reported conduct would be in violation of the Code of Conduct for United States Judges.

The allegations against you regarding your attendance at these fundraising events demonstrate unambiguously unethical behavior that is unacceptable for a judge at any level. Unfortunately, that Code of Conduct that applies to every district and appeals court judge in the country does not apply to the Supreme Court. In fact, as you well know, Supreme Court justices are not subject to any binding code of conduct. Therefore, short of impeachment, there is currently little recourse to hold justices accountable for their violations of ethics or disclosure rules.

Conflict of Interest with Kochs

There is one remaining mechanism to ensure that the Court’s decisions are not infected with conflicts of interest: recusal. As you undoubtedly know, for decades the Koch network has openly sought to overturn Chevron — both by challenging it in the courts and through lobbying Congress to pass legislation. They have even bankrolled law professors with millions of dollars in grants to publicly make their case for them.

Notably, even though you have a well-earned reputation for taking firm and consistent views, you have flip-flopped on this issue. In 2005, many years after you joined the Court, you wrote the majority opinion in National Cable & Telecommunications Association v. Brand X Internet Services arguing for the expansion of Chevron’s protections for government agencies. However, in 2020, you completely reversed course in Howard L. Baldwin v. United States and renounced those views, writing: “Although I authored Brand X, ‘it is never too late to surrender former views to a better considered position.’”

While not widely known until ProPublica’s recent reporting, your extensive personal relationship with both Charles and David Koch raises serious questions about whether you had a conflict of interest in Baldwin. But there is no question that your lengthy relationship with the Kochs, including your participation in donor retreats for the Koch network, requires recusal in the upcoming case that the Koch network has teed up in an attempt to overturn Chevron. Moreover, as you should be aware, the Koch network’s staff attorneys represent the plaintiffs in this case.

Under the Code of Conduct for United States Judges, a judge “shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned,” when said judge has “a personal bias or prejudice concerning a party.”

Here, the Kochs — political activists that you have personally helped fundraise for and personally financially benefited from while their crusade to overturn Chevron was public and well-known — are a party to this case. If you do not recognize that your behavior disqualifies you from ruling on such a consequential case and you do not recuse yourself, it will do irreparable harm to the Court’s credibility and to the public’s faith in the impartial rulings of the entire federal judiciary.

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