The Supreme Court’s conservative justices have been plagued by nonstop coverage of ethics scandals for the past year: luxury Alaskan fishing adventures with a billionaire who later had business before the Court, secret quarter-million dollar loan forgiveness for luxury RVs, exotic escapades to Indonesia and other freebies on Harlan Crowe’s dime, and so on. According to research conducted by Fix the Court, over the past two decades, Supreme Court justices have accepted hundreds of gifts that are together worth up to $6.6 million, led by Justice Clarence Thomas, who has personally accounted for about $5.9 million of that total all by himself.

As questions swirled around about the justices’ integrity, the Court took up another case about the proper interpretation of federal bribery laws. Today, the Court issued its ruling Snyder v. United States and seized the opportunity to make its stance on corruption clear: Corruption is okay, actually.

Federal law makes it a crime for government officials to “corruptly” accept payments while “intending to be influenced or rewarded” in connection with business involving $5,000 or more. James Snyder, the former mayor of Portage, Indiana, was convicted under that law for rigging an ostensibly public bidding process for a million-dollar contract, and then telling the winners that he needed $15,000 to pay off his tax debt and cover his holiday expenses. The company ultimately cut Snyder a check for $13,000, and its controller testified at trial that they were paying for an “inside track.” Snyder later claimed the money was for “consulting;” when asked, his answers changed about what he was supposed to have been “consulting” for. 

But Snyder appealed to the Supreme Court and argued that the law only applies to quid pro quo payments provided before any official government act is taken—not to tokens of appreciation after an official act is taken. And since he didn’t formally agree to give the company a contract in exchange for $13,000, he argues, he’s on legally solid ground. Basically, it’s not actually a bribe unless it’s from the Bribery region of France; otherwise it’s just sparkling pay-to-play.

Writing for the six-justice conservative supermajority, Justice Brett Kavanaugh happily endorsed this argument, distinguishing between “bribes,” which are illegal, and “gratuities,” which are not. “American law generally treats bribes as inherently corrupt and unlawful,” Kavanaugh wrote. “But the law’s treatment of gratuities is more nuanced.”

As an analytical matter, Kavanaugh’s opinion is intellectually incoherent, interpreting the statute in a way totally divorced from the law’s text or purpose. And as a practical matter, this tortured reasoning will make it harder for the government to rein in corruption, thus empowering bad actors in positions of power to serve private interests instead of the public good.

Kavanaugh provides six reasons that purportedly justify the Court’s conclusion: “text, statutory history, statutory structure, statutory punishments, federalism, and fair notice.” He claims that the statute looks like a bribery statute rather than a “two-for-one bribery-and-gratuities statute,” and worries that interpreting the statute to cover gratuities could wrongfully ensnare millions of innocent people. Among the scenarios about which Kavanaugh and company expressed concern is a group of students hoping to treat their professor to an end-of-term Chipotle dinner. Setting aside, for a moment, the fact that this would obviously not function as a bribe, Chipotle costs about 13 dollars—a far cry from the $13,000 solicited and accepted by a city government official in this real, actual case.

The Court’s arguments about the statute’s resemblance to other bribery laws make no sense in the context of what James Snyder actually did. The statute literally, explicitly says that “rewards” are off-limits. The majority pulls the idea that pre-action inducements are covered but post-action rewards are not more or less out of thin air. Furthermore, the statute explicitly focuses on transactions involving items valued at $5,000 or more—limits that, as Justice Ketanji Brown Jackson notes in dissent, pretty clearly “suffice to prevent prosecution of the gift cards, burrito bowls, and steak dinners that derail today’s decision.” Snyder’s “absurd and atextual reading of the statute,” she concludes, “is one only today’s Court could love.” 

There is no meaningful difference between Snyder’s conduct and what any thinking person would call a bribe, except, apparently, the way Snyder structured his bribe cannot be prosecuted. Snyder v. United States is far from the first time in recent memory that the Court has let public corruption (other than its own) off the hook. Going forward, those cases will become even harder to prove: Public officials are on notice that they can’t explicitly ask for money in exchange for official acts, but they can put “tips welcome!” signs on their doors without any fear of meaningful consequences. 

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