THENEWYORKER,JANUARY31, 2022 21
said, is that, “more and more, the courts
are seen as a venue for social change.”
He explained that political groups,
many with secret donors, are “using
the courts the way they used to use
Congress—basically, amicus briefs are
a means of lobbying.”
The problem has become so wide-
spread that in 2018 the rules for appel-
late-court judges were amended to
make it possible for judges to strike
any amicus brief that might force them
to recuse themselves. There has been
no such reckoning at the Supreme
Court—not even when close political
associates of Ginni Thomas’s have filed
amicus briefs. One such associate is
Frank Gaffney, a defense hawk best
known for having made feverish claims
suggesting that Obama is a Muslim
and that Saddam Hussein’s regime was
involved in the Oklahoma City bomb-
ings. Leaked documents show that
Gaffney was a colleague of Ginni
Thomas’s at Groundswell as far back
as 2013. Gaffney was a proponent of
Trump’s reactionary immigration pol-
icies, including, most vociferously, of
the Administration’s Muslim travel ban.
As these restrictions were hit by law-
suits, Gaffney’s nonprofit, the Center
for Security Policy, signed the first of
two big contracts with Liberty Con-
sulting. According to documents that
Gaffney’s group filed with the I.R.S.,
in 2017 and 2018 it paid Ginni Thomas
a total of more than two hundred thou-
sand dollars.
It’s not entirely clear where Gaff-
ney’s nonprofit got the funds to hire
Liberty Consulting. (Gaffney didn’t re-
spond to interview requests.) But, ac-
cording to David Armiak—the research
director at the Center for Media and
Democracy, which tracks nonprofit po-
litical spending—one of the biggest
donors to Gaffney’s group in 2017 was
a pro-Trump political organization,
Making America Great, whose chair-
man, the heiress Rebekah Mercer, was
among Trump’s biggest backers. While
two hundred thousand dollars was being
passed from Trump backers to Gaff-
ney to Ginni Thomas, the Supreme
Court agreed to hear legal challenges
to Trump’s travel restrictions. In Au-
gust, 2017, Gaffney and six other advo-
cates submitted an amicus brief to the
Court in support of the restrictions,
arguing that “the challenge of Islam
must be confronted.”
That December, as the case was still
playing out, Ginni Thomas bestowed
one of her Impact Awards on Gaff-
ney, introducing him “as an encour-
ager to me and a great friend” but giv-
ing no hint that his group was paying
her firm. The Impact ceremony was
held at the Trump International Hotel,
and, according to another
guest, Jerry Johnson, Jus-
tice Thomas was in atten-
dance. Johnson later re-
called that the Justice sat
in front of him and was
a “happy warrior,” pleased
to be watching his wife
“running the meeting.”
Throughout the 2017 and
2018 sessions, as various
challenges to the travel re-
strictions were considered by the Court,
Justice Thomas consistently took a
hard pro-Trump line. Finally, in June,
2018, Thomas and four other Justices
narrowly upheld the final version of
the restrictions.
It’s impossible to know whether
Thomas was influenced by his wife’s
lucrative contract with Gaffney, by Gaff-
ney’s amicus brief, or by her celebra-
tion of Gaffney at the awards ceremony.
Given the Justice’s voting history, it’s
reasonable to surmise that he would
have supported the travel restrictions
no matter what. Nevertheless, the law-
yers on the losing side of the case surely
would have wanted to know about
Ginni Thomas’s financial contract with
Gaffney. Judges, in their annual finan-
cial disclosures, are required to report
the source of their spouses’ incomes.
But Justice Thomas, in his disclosures
in 2017 and 2018, failed to mention the
payments from Gaffney’s group. In-
stead, he put down a curiously low book
value for his wife’s lobbying firm, claim-
ing in both years that her company was
worth only between fifteen and fifty
thousand dollars.
Roth, of Fix the Court, told me that,
at the very least, Justice Thomas should
be asked to amend his financial state-
ments from those years—as he did in
2011, after it became public that he hadn’t
disclosed the six hundred and eighty-six
thousand dollars that his wife had earned
at the Heritage Foundation between 2003and 2007. Beyond that, Roth said, “the
Justices should, as a rule, disqualify them-
selves from cases in which a family mem-
ber or the family member’s employer has
filed an amicus brief.” In Congress, the
Democratic senator Sheldon White-
house, of Rhode Island, is pushing for
reform. Amicus briefs, he told me, are “a
form of lobbying that has two terrible
aspects—the interests behind them are
hidden, and they are aston-
ishingly effective in terms of
the win rate.” He added,
“They open up real avenues
for secret mischief.”
In January, 2019, Ginni
Thomas secured for Gaff-
ney the access that her Web
site promises. As Maggie
Haberman, of the Times,
and Jonathan Swan, of
Axios, have reported, not
long after Clarence and Ginni Thomas
had a private dinner at the White House
with Donald and Melania Trump, the
President’s staff gave in to a months-
long campaign by Ginni to bring her,
Gaffney, and several other associates to
the White House to press the President
on policy and personnel issues. The
White House was not informed that
Gaffney’s group had been paying Lib-
erty Consulting for the previous two
years. (Gaffney’s group did not report
signing a contract with Liberty Con-
sulting for 2019.)
The White House meeting was held
in the Roosevelt Room, and by all ac-
counts it was uncomfortable. Thomas
opened by saying that she didn’t trust
everyone in the room, then pressed
Trump to purge his Administration of
disloyal members of the “deep state,”
handing him an enemies list that she
and Groundswell had compiled. Some
of the participants prayed, warning that
gay marriage, which the Supreme Court
legalized in 2015, was undermining mor-
als in America.
One participant told me he’d heard
that Trump had wanted to humor
Ginni Thomas because he was hoping
to talk her husband into retiring, thus
opening up another Court seat. Trump,
given his manifold legal problems, also
saw Justice Thomas as a potentially
important ally—and genuinely liked
him. But the participant told me that
the President considered Ginni Thomas