New Clarence Thomas Report Throws Wrench in Upcoming Supreme Court Case

A new report published by ProPublica on Friday has raised questions about whether Justice Clarence Thomas should recuse himself from deciding Loper Bright Enterprises v. Raimondo this upcoming Supreme Court term.

The case, brought by a family-owned herring fishing company operating in New England waters, is asking the court to overturn its 1984 landmark decision in Chevron v. Natural Resources Defense Council. The court is expected to hear oral arguments in the October 2023-2024 term.

In Loper Bright Enterprises, commercial fishermen are arguing that the National Marine Fisheries Services (NMFS) lacks authority to force fishermen to pay for the salary of compliance monitors who are required to be allowed onto herring fishing boats. Because both the U.S. Court of Appeals for the District of Columbia Circuit applied the Chevron doctrine—which compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute—the 1984 legal precedent is also coming into question.

But Friday's report suggests that Thomas' secret friendship with billionaire Charles Koch, and his late brother David, could disrupt the case. The revelations detailed Thomas' attendance at a Koch network donor event and his trips to the Bohemian Grove retreat, where Koch is an active member as was his brother, shedding light on the access the brothers had to the justice. The claims add to the pile of controversies Thomas has become embroiled in over recent years, including his failure to report luxury trips and gifts in his financial disclosures.

The Koch network, which has advocated against Republican support for combating climate change, has long sought to overturn Chevron. The major conservative political network has previously challenged the legal precedent in the courts, lobbied for Congress to nullify the Supreme Court decision and provided millions of dollars in grants to law professors arguing against Chevron. Now, its staff attorneys are representing the plaintiffs in Loper Bright Enterprises.

The Chevron case is a major Supreme Court decision that has been cited by lower courts 15,744 times over the nearly four decades since it was issued.

"Essentially what that doctrine says is that courts should be deferential to administrative agencies implementation of legislation as long as it is not arbitrary, capricious, or manifestly contrary to statute and that the agencies reading of the law is reasonable," Alex Badas, a political scientist specializing in judicial politics, told Newsweek.

Bruce Peabody, a politics professor at Fairleigh Dickinson University, explained that the Chevron precedent has long recognized that Congress has difficulty agreeing on all the details of legislation, so the decision allows executive agencies to fill in the gaps where lawmakers can't or won't.

"In today's political environment of hyper-partisanship and legislative morass, overturning Chevron could wreak havoc on the law in such areas as labor, environmental regulation, and many others," Peabody told Newsweek.

Although Thomas had at one point written the majority opinion that expanded Chevron's protections and gave rise to the Brand X deference in 2005, he began questioning the Chevron doctrine 10 years later, and by 2020, Thomas reversed his position entirely, retracting his 2005 opinion and deciding that he now considered Chevron to be unconstitutional. Three months later, the Supreme Court announced it would take up Loper Bright Enterprises in May.

"If Thomas and his colleagues side with them this coming term, Chevron will be overturned once and for all," Friday's report said.

Badas noted that Thomas is not the first to cast doubt on the Chevron precedent. Since the case was decided, critics have long argued that it violates the Constitution's separation of powers because the broadness of the Chevron deference allows for administrative agencies the ability to legislate, rather than implement rules and regulations that have already been outlined by lawmakers.

Although there are other conservative justices on the bench who are closer to the ideological center than Thomas, many of them have also signaled their willingness to overturn Chevron. And since Thomas has shown little interest in responding to the ethical controversies he's been embroiled in thus far, legal experts said it's unlikely the conservative justice would bow out of Loper Bright Enterprises.

"The Supreme Court has no formal recusal rules for the Justices. So, the Justices have considerable discretion in deciding whether to recuse from a case or not. Thomas has not recused in previous cases in which there could be the appearance of bias. I think it is unlikely that he will recuse in the Loper Bright Enterprises case," Badas said, adding that there's a "big possibility" that Chevron will be overturned this term.

"Given the extensive ties between him, the Koch brothers, and other influential conservative donors and networks, it's hard to imagine he freely treads on the slope of recusal for this case," Peabody said. "Where would it end?"