Recent revelations surrounding the hyperpartisan takeover of our courts keep bringing me back to a single quote from 2017. At the time, Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, was lavishing praise on dark-money kingpin and judicial impresario Leonard Leo at an awards ceremony for far-right leaders. “He has many hats,” Thomas said cryptically of Leo. “That isn’t even all he does. He doesn’t really tell all that he does.”
Fortunately, it’s becoming harder and harder to hide all that Leo does, thanks in part to yet more new Politico reporting by Heidi Przybyla that dropped this past weekend. While it’s possible to read her report as a byzantine labyrinth of phony charitable groups, unreported donations, troughs of dark money, and multimillion-dollar campaigns, even the most confused reader can still connect the blacked-out dots to its inevitable conclusion.
It seems that at precisely the same moment the Supreme Court was poised to decide the 2010 Citizens United case that would set aside a century of campaign finance regulations under the novel theory that money is speech, Thomas, wife of a sitting justice, in concert with Leo, was secretly building the sort of dark-money front group that would soon be greenlit by the court’s decision. That group would be funded by Harlan Crow, the billionaire who spent decades secretly enriching the same justice who would sit on the case and the same spouse who would benefit from the outcome of the case. And the dark-money group founded by Ginni Thomas would go on to advocate for cases argued before the court as her husband heard those cases.
Of course, this is all intentionally as elaborate and complex as possible. In one typically convoluted episode, per Politico, a Leo-affiliated group, the Wellspring Committee, claimed to have donated $136,000 to the organization JEP, another Leo-affiliated group, even as the latter reported receiving less than $50,000 in donations. Even if you can’t force your hurting brain to piece together the gaps, the distortions, and the sinkholes of money and fact, nobody reading about the ways in which the Supreme Court became a fantasy football league for a clutch of rich guys can truly be blind to the fact that a handful of millionaires and billionaires bought and paid for the wife of a sitting Supreme Court justice to push out their ideas and cases.
The “many hats” defense is quickly proliferating beyond the handful of people you may recognize from Crow’s modified Last Supper painting. It turns out that Justice Samuel Alito doesn’t feel he has to recuse himself from the biggest tax case of the upcoming term despite his extreme entanglements with one of the attorneys arguing the case. That’s because David Rivkin is all at once a “journalist” using the pages of the Wall Street Journal to defend Alito’s time spent with billionaires. He is also Alito’s private PR flack, and also a Supreme Court litigator in a tax case filed on behalf of other billionaires, but also somehow Leonard Leo’s attorney. Or take the “many hats” of Mark Paoletta, who is simultaneously Ginni Thomas’ lawyer, Clarence Thomas’ writing partner, and also the beneficiary of funding from assorted billionaires with business before the court, but also, amazingly, a neutral and disinterested expert on ethics rules. You can apply the “hats” defense to Thomas’ benefactor Harlan Crow, whose financial dealings are supposedly so complicated that nobody should have known he had business before the court. Or ditto Alito’s pal, billionaire Paul Singer, who may still have business before the court this year.
So. Many. Hats.
You would think that with all of their billions, these billionaires and their lawyers could afford to purchase multiple and appropriate hats. The confusion, though, is the point. Such as when the same Leonard Leo who is funneling secret funds to Ginni Thomas is also spearheading campaigns to fill judicial seats, and also matchmaking justices with potential benefactors for luxury fishing trips. The dots are so messy yet so obvious that it makes it easier for the perpetrators of this whole sordid scam to call anyone who connects them crazy.
If everything that has transpired in the years since Citizens United rewrote the rules on money and politics was in fact lawful, why was it all a secret? Why did it fall to Politico, ProPublica, the Washington Post, and advocacy groups to report out the webs of money, front groups, and the spotty disclosures? If paying a justice’s wife to work on cases heard by the justices is really just fine why did Leo demand that it be kept secret?
As Politico notes this week, in a July interview with the Maine Wire, a conservative news outlet near his $3.3 million waterfront estate in Maine, Leo offered this explanation for why his multiple nonprofit groups don’t reveal their donors. “It’s not to hide in the shadows,” he said. “It’s because we want ideas judged by their own moral and intellectual force.”
But it’s awfully hard to judge all these “ideas” when one side is secretly spending tens and millions of dollars on hatching them and pushing them out and sucking up to the same judges who will come to embrace them as doctrine, all the while lying about it in public.
Which brings us round again to Justice Samuel Alito, who has taken the position, again, that he can and should be unburdened by federal court recusal rules. Alito’s basic reasoning is that he feels good about himself, his ethics, and his relationship with Rivkin, a sometimes journalist, sometimes lawyer, sometimes friend, sometimes defender with whom he cooperated on an interview celebrating his own independent mind while the court was docketing Rivkin’s case for next fall.
I mean, maybe? If everyone in your personal ambit is always wearing 15 hats, they probably crash into walls a lot, and if your defense is that you can’t help who you pal around with, attempt to exculpate yourself with, or accept lavish trips from, the correct approach is to meticulously avoid the appearance that you are also deciding cases for them. Again, the point is to make us think our stringboards are the batty things, and not their corruption. But that is why Leo, who is currently in defiance of a congressional records request and the subject of a probe by the D.C. attorney general, says he won’t comply with any form of disclosure.
We can perhaps, finally, put to rest the claims that these are witch hunts against innocent billionaires, oligarchs, and the justices who comprise their mini constitutional petting zoos?
It stinks. We know it stinks because even if we can’t begin to follow every jot and tittle of missed filings and incomplete disclosures and mysterious shell organizations that operate out of P.O. boxes, we do know that when they are lying about it, they’re hiding something. And we also know that if a divorce judge in family court was hearing our child support petition, we’d be pretty damn bummed out if their mom’s rent, grand-nephew’s tuition, and personal fishing trips were all being paid by our former spouse. We’d be even more bummed out if it turned out that our former spouse was also paying millions to fund campaigns to have said divorce judge installed on the court and yet more (!) millions to get their ideas legitimated in public discourse. At the point at which our former spouse was also found to be spearheading the production of hagiographic documentaries and books about our divorce court judge, we would be apt to think that they were less a jurist than our ex-spouse’s line worker. The sundry claims about how rich people these days just seem to have an uncontrollable need to buy the powerful luxury campers and bespoke salmon would offer little solace in such a divorce court proceeding. The fact that they have helped craft a system of laws and regulations that ensures that everyone gets to keep lying about all this probably wouldn’t make us feel better about our chances regarding child support.
In the end, kindly don’t let the millions of dollars and billions of dollars—and how they are spent and how we can’t properly track how they are spent—distract you from the story. That story is not any less horrifying because we can’t ever seem to fully understand it. Indeed, the horror is that the people who bought the judiciary and the judges who defend those many-hat-wearing oligarchs are counting on us to be too confused to do anything about it.