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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. We'll hear now from New Yorker Washington correspondent Jane Mayer, one of the leading chroniclers of far-right power and influence in this country. She is author of the 2016 book Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right. She wrote an article in The New Yorker last year following the money behind Donald Trump's big lie about a stolen election.

She also wrote a book about Clarence Thomas some years ago called Strange Justice: The Selling of Clarence Thomas, and her brand new New Yorker article looks at ties between Thomas's wife and right-wing groups that have an interest in issues before the Supreme Court. She writes, the claim that justices are politically neutral is becoming increasingly hard to accept, especially from Justice Thomas, whose wife, Virginia Thomas, is a vocal right-wing activist.

We'll talk about the conservative activism of Ginni Thomas and some of the issues she's involved in, which by the way, are coming up in controversial cases appearing before the court, and also put it into the larger context of Jane's work, following the money of far-right influence in the United States. Jane, welcome back to WNYC. It's always great to have you.

Jane Mayer: Thanks so much. I'm so glad to be with you.

Brian Lehrer: Who's Ginni Thomas? We rarely hear about Supreme Court spouses at all.

Jane Mayer: Well, you hear more about her than any of the others, I think. She's been married to Clarence Thomas, I guess, since about 1987. She was a lawyer in her own right, though she doesn't practice. She's actually got a very small political lobbying firm in Washington that has unusually large access to powerful people, as she notes on her website where she says she can access any door in Washington.

Brian Lehrer: That's a lot of access. I assume she means also the Supreme Court door, or do you find in your reporting that she draws any line there because of who her husband is?

Jane Mayer: Well, this is the problem. Her work has been controversial for years because I think it's a combination of things. Part of it is the extremism of her politics. She's aligned herself with really some of the most radical right-wing actors in the country and groups in the country. Many of them have brought business in front of the court. They've brought cases. They've stirred the issues that are in the center of these cases. She's very, very vocal about this behind closed doors.

She's gotten herself quite tangled up in these groups that are in front of the court. That's what I was writing about because it's become a matter of great concern right now to many people, partly because the issues that she's involved in and has been promoting so hard, and the people that she's been working with, who are right in front of the court now, are on the verge of winning. I think it's raised a lot of questions in fair-minded people's minds about whether she has a thumb on the scale, basically, of the court, even though she doesn't have a seat there.

Brian Lehrer: Can you give us some specific examples of what kinds of groups?

Jane Mayer: Yes. Actually, there's a great example just today. It came up yesterday. The court decided it's going to hear what could be a tremendously important case about affirmative action that programs that Harvard University and the University of North Carolina use. In that case, looking at affirmative action that could affect many people across this country. Ginni Thomas is on the board of an organization that's filed a brief in the case, an amicus brief.

She's actually on the advisory board of something called the National Association of Scholars, and it has pushed the issue of getting rid of affirmative action and has filed a brief in front of her husband. It's just as a couple of people have said to me, it's too close for comfort. It's slicing the baloney a little too thin. It creates an appearance problem that maybe if Clarence Thomas votes her way that it's not a fair matter, but it's because his wife's involved in it. That's a bad thing when people start thinking that that's how the court works.

Brian Lehrer: Has Justice Thomas ever recused himself or been asked to recuse himself on the basis of his wife working too closely with somebody involved in a case?

Jane Mayer: Not that I know of or that anybody else I interviewed could come up with an example of, not because of his wife. He did recuse himself once because of a family member that was at a school that was at the center of a case. Never, as far as I know, because of his wife. Yet there have been many calls for him to try to fix this problem to either recuse or to ask her to get involved in politics in some other way, where it's not a direct conflict with the court's work.

Brian Lehrer: Want to give us another example, you gave us the newest, which is really interesting because this really happened even since your article was published this case, which we'll be discussing in a separate segment later in the week. Another attempt to have affirmative action in university admissions ruled unconstitutional. What's another example?

Jane Mayer: You know what? I think one of the most troubling examples that I came across was an example having to do with the Trump Muslim ban case, the so-called Muslim ban about banning Muslims from coming into United States as immigrants. In that instance, what I found out was that Ginni Thomas was a paid consultant earning over $200,000 in 2017 and 2018 from a secret client who remains undisclosed unless you know where it'll look, which I finally found out.

This client is Frank Gaffney, who has a center called the Center for Security Policy. Frank Gaffney was hiring Ginni Thomas while he was also submitting an amicus brief to the court in support of Trump. She was getting paid by Gaffney. Again, that's a case that her husband was hearing, he took Trump's side. That couple, as far as I can tell, earned over $200,000 at the same time by one of the people who was involved in that case, and none of this is visible in the disclosures, the financial disclosures from Clarence Thomas.

Brian Lehrer: Does that violate the law in any way, the way you just laid it out?

Jane Mayer: Well, the rules for disclosing justices of finances are written in such a murky way. I had a terrible time trying to figure out whether it violated the rules or not. If it doesn't, then they need to close the loopholes. It really seems that they're written in a way, there's a gigantic loophole there where you can give money to a spouse of a justice if that spouse has a company and not have to disclose where the original source of that money is, the who the client is. The possibilities for bribery are huge there.

Brian Lehrer: Listeners, we can take some phone calls for Jane Mayer, senior Washington correspondent for The New Yorker. Her latest article, Is Ginni Thomas a Treat to the Supreme Court? You hear the conflict of interest allegations that she's laying out here. 212-433-WNYC, 212-433-9692.

As we go along, I'm also going to ask Jane to follow up on the article that she wrote back last August, every week seems like a year these days. This is like, so long ago, back in August, when she wrote the article, which was much discussed The Big Money Behind the Big Lie. I think it's still really relevant because the big lie is going on. The big lie will influence the outcome of the 2022 elections, not only the election that the big lie was about. We will follow up on that or you can call and ask your own question on that, Jane Mayer, if you like, at 212-433-WNYC, 433-9692 or tweet a question @BrianLehrer.

Jane, what do you think the standard should be for a Supreme Court justice recusing themselves over something that a spouse or any close relative does? I'm sure people in almost any walk of life, including the judiciary, including politics, will say, "I'm not my spouse. I'm not my child. I'm not my parent. I'm not my sibling. I'm my own person doing my job and they're doing what they do."

Jane Mayer: Many have said that over the years. There actually are very explicit rules for all the judges beneath the Supreme Court level on these issues that say that if a spouse has an interest in the outcome of a case or if a spouse is a party to a case or involved in a case by being on the board of an organization that's involved in a case, all those kinds of reasons, there are explicit rules saying a judge should step aside, should recuse.

The reason is even if it's not an actual conflict, even if, say, a husband says, "I don't listen to what my wife tells me to do. I'm not going to take her side on this issue," even if that may be the case, what we think in this country, according to the people I interviewed, is that the appearance of justice is just as important as the actual fact of justice because it's why the public reveres the courts and respects their judgment because we think it's fair. Even if we don't agree with the judgment, we don't think it's corrupt, and that appearance is incredibly important. That's why there are rules for all the judges beneath the Supreme Court level that basically say, step aside if your spouse has a conflict.

The Supreme Court is different. It doesn't adhere to the same code of justice that all of the other judges in the country do, because there's nobody above it who could enforce such rules. Also, it is a slightly different situation. There are only nine of them. If they recuse, it leaves the court with-- one recuse is eight, and you could have a split decision and then no answer. It's a little more complicated, but I think, if there's any court that ought to be abiding by really fastidious, rigorous rules about ethics, it ought to be the Supreme Court, which is the highest court in the land.

Brian Lehrer: You are bringing up a Clarence Thomas potential conflict of interest in this week's edition of The New Yorker. I think Howard in Manhattan wants to look back to something that happened 22 years ago. Howard, you're on WNYC, hello.

Howard: Hello, Brian. Hello, Jane. Yes, I seem to recall that this matter of a potential conflict or an actual conflict with the Thomases goes back at least to the contested election of 2000 in the Bush legal litigation when it went straight to the Supreme Court. I seem to recall reading back then that Ginni Thomas was representing parties with an interest in the outcome and the litigation. I think there was a moment where during the oral argument where I think it was Justice Thomas may have tipped his hand as to how he was leaning.

My point really is this, you're right where you've talked about the appearance of impropriety and the appearance of fairness and everything else that goes along with it. Here, it's quite clear to me that Ginni Thomas is using her relationship with her husband and it's completely understandable that she would do that in order to make a substantial income. The fact that Justice Thomas seems to be above, not above reproach, but above "the law", there is no law, it's all about what's ethical, what's appropriate, and what's professional, but I think it really does call into question his impartiality or even the appearance of his impartiality.

Brian Lehrer: Howard, I'm going to leave it there and get a response. He really puts another wrinkle into this, Jane, one that connects with your other work about following the funding of far-right activities. You've been talking about Ginni Thomas's ideological interests perhaps being a conflict of interest for Clarence Thomas. The caller says maybe she's making a lot of money on this too because of who he is. Does your reporting indicate that?

Jane Mayer: Well, again, one of the problems is if you look at the financial disclosure forms, you're not going to see it right there, at least not easily. Certainly, she made a fair amount of money from working for Frank Gaffney, his group in 2017 and 2018, and the caller is correct that in 2000, she was working for the Heritage Foundation and her job was preparing lists of people to be hired in the future Bush administration as the election was still being decided, and it was in front of the Supreme Court.

Her interests, her work interests, and her salary were involved with picking people for a new administration at a time when the court hadn't even decided who was going to be president, and so there was a lot of complaint at that time. There's been a lot of complaint about Ginni Thomas all the way through all these years, and if anything, it's just become more and more flagrant. Right now, with the court deciding so many important issues, it's been becoming much more of a sore spot with many people. I wanted to say one other thing, which is less than anybody think we're just picking on Clarence Thomas here. The thing is if he presents a very different attitude towards these issues than others on the court.

When John Roberts joined the court, his wife who is also a lawyer, Jane Sullivan Roberts, she stopped practicing and she stepped down from her role in a political organization that was a pro-life group and because they felt it was unseemly and presented a conflict. When Ruth Bader Ginsburg became a judge, her husband, Marty Ginsburg, who was one of the country's most prominent tax lawyers, gave up his law practice and became a professor in order not to pose any kind of conflicts of interest. Brett Kavanaugh has recently recused himself from a case because people think involved a trade group that his father had been involved in before his father retired. The judges, for the most part, are very careful about this because they respect the independence of the court and the image of the court, but Clarence Thomas and Ginni are on a very different trajectory here.

Brian Lehrer: I think Fred in Brooklyn wants to ask about a single standard or a double standard here. Fred, you're on WNYC. Hi there.

Fred: Hi, good morning, Brian. Good morning, Wendy, I think it is.

Brian Lehrer: It's Jane Mayer from The New Yorker. Yes.

Fred: Jane, I'm sorry, Jane. Yes, talking about you just mentioned the justice that I was going to bring up, Justice Ruth Bader Ginsburg. As my understanding, and I don't know if it's true or not, but I remember the time when the Supreme Court was deciding on gay unions, that Justice Ginsburg performed a gay union prior to the decision, which I believe was a disastrous decision. If she had recused herself, perhaps we wouldn't have had this terrible situation that we're in today. First of all--

Brian Lehrer: Fred, can I ask you, I'm just curious. I know it's a little off the topic, but how does gay marriage hurt you?

Fred: I'm sorry.

Brian Lehrer: You're calling it a disastrous situation that we have legal same-sex marriage. How does it hurt you? How does it hurt anybody?

Fred: Well, I think it hurts society. You could see what's happening around us all around us. It's not natural and it should not have been decided. If she was involved in performing that union prior to the decision, I think she should have recused herself.

Brian Lehrer: Fred, thank you very much. Without getting into his statement that's something that naturally occurs in the population, which is homosexuality is not natural. On the recusal question that he raises, what about incidents like that? I guess he's talking about she performed a legal gay marriage in a state that had already legalized it at the state level before the constitutional question came to the Supreme Court, Jane.

Jane Mayer: Well, all of the justices and many judges too perform weddings. If it's illegal wedding, it's I think one of the things they take great delight in from what I've been able to tell, they enjoy performing weddings. It's a happy occasion for people. I don't see that as a conflict of interest. I think it's just one of the things that judges always do. Anyway, and again, I think the thing that's important that has to do with the conflict of interest that's akin to what we're talking about here, which is when your spouse is an activist and presents a conflict, is that justice Ginsburg's husband gave up his job in order to make sure that there were no conflicts.

There's an interesting case too about on the Circuit Court, the Court of Appeals right beneath the Supreme Court where Nina Pillard is a judge on the Circuit Court and her husband, David Cole, is the legal director of the ACLU. Nina Pillard will not hear a single case that the ACLU is involved in, not nationally, not locally, and not even an amicus case in order to avoid any kind of image of conflict.

Brian Lehrer: Pretty close parallel to what you're writing about with Ginni Thomas and Clarence Thomas but the opposite decision, obviously. Anne in Manhattan, you're on WNYC. Hi Anne.

Anne: Hi, Brian, thank you for taking my call, and Jane Mayer, I just want to say right off, I love the work that you do. Whenever I hear you're going to be on radio or TV, my ears spark up.

Jane Mayer: Thank you.

Anne: Here's my question. [laughs] Moving forward with my question, it's really just to educate myself and maybe other listeners. Just a small aside, what is the role of a Chief Justice with his Justices? The case would be Justice Roberts in all of this topic? I'll take the answer off the air. Thank you.

Brian Lehrer: Thank you. Now that she's buttered you up, Jane--

Jane Mayer: [laughs] Then a hard question. It is a great question, and I'm not sure that I have the answer. I've been wondering exactly the same thing. Chief Justice Roberts has said that he thinks the court can handle these issues itself. It doesn't want Congress to interfere in any way in these matters. He has made clear he feels very strongly that the court needs to be above reproach.

I imagine that these issues and this criticism rankles him a lot, but does he speak to Justice Thomas about it? The one person I asked who knows anything about sort of the dynamics internally there said that they don't dare speak to each other about these matters, that it each Justice functions as if they are their own law firm, with their own clerks, their own research, and their own standards. That's how it works or that's how it doesn't work.

Brian Lehrer: Something that comes up a few times in your story is Ginni Thomas' near obsession with a so-called deep state. She said that America is in existential danger because of it. She urged Donald Trump when he was president to rid his administration of members of the deep state. She thinks that the deep state "may have been behind the sexual assault allegations against Brett Kavanaugh", which we know, I think, came from an individual. Does her paranoia over the deep state seem to indicate she's on the fringes even within her far-right activist circles?

Jane Mayer: I interviewed a number of people who have interacted with her. One of them said to me she's really volatile. She basically approaches politics with either you're part of her little group or you are the enemy. He said she's very tribal. I know from interviewing people in the Trump White House that former President Trump, he liked Clarence Thomas personally, but he told somebody that I interviewed that he thought that Ginni Thomas was "whacko".

She's on the fringe, which could be on-- she's been dismissed as harmless in some ways for many years. The problem is that she's now become more and more entangled with these cases that are in front of the court. It's not just about Ginni Thomas. It's really about the image, the propriety of the Supreme Court itself.

Brian Lehrer: That's, of course, the heart of your article. Last question before you go. The funders of these groups that then hire or work with Ginni Thomas to try to influence Clarence Thomas on the Supreme Court, how related are they to the groups that you chronicled in your article last summer, The Big Money Behind the Big Lie, and how active will they be on the big lie in this 2022? Midterm election year, we, of course, see state after state, cracking down on access to elections based on election fraud that never happened.

Brian Lehrer: You see a lot of the same fortunes, the big, big money on the far-right funding a lot of the same groups that are involved in all of these activities. You kind of begin to feel a little bit like you have to make a flow chart about this thing, but you keep coming-- I keep stumbling over the same groups. You'll see in this story if people get a chance to read it, it's Rebekah Mercer is the daughter of a huge hedge fund operator and she's very involved in funding right-wing politics. She funded this Frank Gaffney's group. It then funded Ginni Thomas, her consulting group so that that money then flowed to the Thomases while that issue was being heard by the court. You can kind of trace the money back to some of the same players over and over and over again.

Brian Lehrer: Jane Mayer, Chief Washington Correspondent for The New Yorker. You can find her latest piece, Is Ginni Thomas a Threat to the Supreme Court? in this week's magazine or online. Thanks, Jane.

Jane Mayer: Great to be with you. Thanks for having me.

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