Justice Thomas Debunks the Pulitzer-ProPublica Caricature

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Justice Thomas

The best way to read today’s U.S. Supreme Court opinion in Consumer Financial Protection Bureau et al. v Community Financial Services Association of America, Ltd. et. al may be as the authoritative rebuttal to the New York Times-ProPublica-Pulitzer caricature of Justice Thomas as a tool of monied interests.

ProPublica’s coverage of Justice Thomas, which I pushed back against in a couple of Wall Street Journal pieces (here and here) was ratified with the 2024 Pulitzer Gold Medal for Public Service. It featured headlines like “Clarence Thomas and the Billionaire” and “Clarence Thomas Secretly Participated in Koch Network Donor Events” and “Clarence Thomas’ 38 Vacations: The Other Billionaires Who Have Treated the Supreme Court Justice to Luxury Travel.” 

To read the attacks on Thomas, he’s just a pawn of the rich, corrupted by friendships with wealthy businessmen. Yet, lo and behold, the court’s 7-2 opinion upholding the constitutionality of the scheme financing Elizabeth Warren’s pet agency, the Consumer Financial Protection Bureau, is written by Justice Thomas, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson. Justices Alito and Gorsuch dissented. 

In terms of preferred political outcomes, defunding the CFPB by striking down its funding might not be at the very top of the billionaire policy wish list, but it would probably be somewhere on there. The funding scheme includes the ability annually to requisition and even squirrel away unused as a kind of endowment for future expenses up to 12 percent of the Federal Reserve System’s total operating expenses as reported in fiscal year 2009 (adjusted for inflation). In 2022 that annual amount was about $734 million.

Yet Justice Thomas is not going to be some judicial activist on behalf of business interests. He’s going to read the Constitution and apply consistent principles. Those principles say that short of a genuinely clear Constitutional violation, if you have a problem with a law, your best bet is to get Congress to repeal or amend it, not to ask some court to declare it illegal.

Contrary to the cynical caricature of the Supreme Court as bitterly divided between Republican-appointed conservatives and Democrat-appointed liberals, in this opinion the four conservatives Roberts, Thomas, and Barrett, and Kavanaugh joined the liberals Kagan, Jackson, and Sotomayor. I was fully confident in the integrity of the Supreme Court all along, but for anyone who wasn’t, this opinion should be reassuring. 

As for what it says about the reliability and accuracy of the press-Pulitzer complex, well, we’ll leave that topic for another day.