Justice Clarence Thomas Has Party Time Paid For By Supreme Court Litigators

Prominent Litigators Send Venmo Payments to Thomas' Aide

The Guardian reported that an aide to Justice Thomas, Rajan Vashisht, during his service as an administrative assistant from July, 2019 to July, 2021, solicited payments from lawyers who had clerked for Justice Thomas and many of whom litigated cases in the Supreme Court. The amount of the payments is unknown, but they were all paid to Vashisht through Venmo. Most of the payments were marked for the Thomas 2019 Christmas party.

If the Code of Conduct for United States Judges applied to the Justices, there appear to be several lapses here.

Canon 1 states that “A judge should maintain and enforce high standards of conduct and should personally observe these standards, so that the integrity and independence of the judiciary may be preserved.” Preservation of integrity and independence give legitimacy to Court opinions. Failure to maintain high standards leads to the Court losing legitimacy. As one senior judge wrote in the NY Times this is the smell test. If it smells rotten, the Court loses legitimacy.

Canon 2(B) states “A judge should not allow family, social, political, financial or other relationships to influence judicial conduct or judgment. … A judge should no[t] convey or permit others to convey the impression that they are in a special position to influence the judge.”

Canon 4(D)(4) states: “A judge should comply with the restrictions on acceptance of gifts and the prohibition on solicitation of gifts set forth in the Judicial Conference Gift Regulations.” The gift regulations broadly define gifts to include gratuities, entertainment and loans having monetary value but excludes “social hospitality based on personal relationships.” Do payments by former law clerks for a party with the Justice violate this Canon? Probably not, depending on the amount that was paid. If it was $250 it probably paid for party costs, but if it were $1,000 or more, serious questions would be raised. We do not know what the former law clerks paid.

But some of these party payers were Supreme Court litigators, one of whom, Patrick Strawbridge, a partner at Consovoy McCarthy, won his argument that race based university admissions violated the Constitution. So, during that 2019 party what did Mr. Strawbridge discuss with Justice Thomas? Did they discuss the issue of race based admission criteria? Based upon Thomas’ prior statements, it would be an easy task for Strawbridge to convince Justice Thomas of his position. But this party gave Strawbridge the opportunity to discuss the issue and even plan the litigative approach with Justice Thomas.

Another payer for the 2019 party was Kate Todd, now the managing partner of the Washington office of the Ellis George Cippolone law firm. She was previously head of litigation for the US Chamber of Commerce. Her bio notes she has an extensive practice before the Supreme Court. So, what did she discuss with Justice Thomas? Did she discuss issues before the Court.

Another paying attorney was Elberrt Lin who was the Solicitor General of West Virginia and played a leading role in the case limiting EOPPA’s ability to regulate greenhouse gas emissions. He is now head of issues and appeals at Hunton Andres Kurth in Richmond. What did he discuss with Justice Thomas at the 2019 party?

Then there was Brian Schmalzbach, an attorney at McGuire Woods who has an extensive Supreme Court practice including cases on criminal law, tax, securities law and others. And what did he discuss with Justice Thomas at the 2019 party?

Justice Thomas in his concurrence in the Dobbs abortion case said the Court should reexamine cases based on personal rights of privacy such as the Obergefell vs. Hodges decision on gay marriage; Griswold v. Connecticut, the birth control case and Loving v. Virginia striking down laws prohibiting marriage by different races (actually Thomas refrained from including Loving). Is Justice Thomas conferring with these Supreme Court litigators on how to reverse those cases to which he objects?

Most likely the discussions at the 2019 party did not end with how is Ginni?, will she be successful in undermining democracy?, how are you feeling? It is probable that these parties became planning sessions on how to overturn cases to which they object and bring new ones to expand religious rights and Second Amendment rights.

If that occurred questions should be raised whether Justice Thomas was campaigning to have certain cases brought before the Court and planning to achieve their desired result. Do these parties become action alerts to the Federalist Society?

Section 620.35(a) of the Gift Regulations states that “A judicial officer or employee is not permitted to accept a gift from anyone who is seeking official action from or doing business with the court …” So that Section of the Gift Regulations seems to apply to having former clerks doing business before the court pay some amount for the privilege to attend the party and have one on one discussions with Justice Thomas on current, past or future court business.

But none of this applies to justice Thomas as the Justices have exempted themselves from the Judicial Canons and the Gift regulations.

Chief Justice Roberts has resisted efforts to have the Court adopt the Judicial Canons and the Gift Regulations. He says they have adopted something, but no one knows what is included. Secret Codes of Conduct are worse than no Code of Conduct.

In an Opinion by Ruth Marcus in the Washington Post she included an edited transcript of her discussion with Jeremy Fogel, the Executive Director of the Berkeley Judicial Institute, who said that the lack of transparency is one of the biggest problems as no one knows what the Rules are and there is no known public enforcement procedures. He says that some of the Justices have been careless with appearances. I would say that is putting it mildly.

The appearance of impropriety is at the foundation of the various ethical rules including, one hopes, the Justices’ secret ethical rules. If the Justices are careless with appearances, and if the substance of their rulings alienate a good part of the electorate, they combine to lower the legitimacy of the Court. If the Court loses legitimacy, people will question whether some of their decisions must be obeyed. A court without legitimacy is a court that cannot function and one whose decisions will not be enforced or only grudgingly enforced.