It Sure Looks as if KBJ Is Throwing Yacht Shade at Sam Alito and Clarence Thomas (2024)

On Wednesday morning, the Supreme Court handed down another entry in a long series of cases that make it easier for public officials to grift off their political office. In Snyder v. United States, the court determined, in a 6–3 split, that a federal anti-bribery law does not prohibit state and local officials from accepting “gratuities” from pleased parties as a reward for favored treatment.In an opinion authored by Justice Brett Kavanaugh, the conservative supermajority distinguished between bribes you can agree to before you do someone a favor (illegal) and gifts you accept quietly after (just fine). Mark Joseph Stern and Dahlia Lithwick discussed the decision in Wednesday’s Slate Plus bonus episode of Amicus. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: Mark, another case that was really important but won’t get much attention was Snyder v. United States, and it seems, hilariously, to differentiate between bribes and gratuities that are paid out after the favor is done. This decision is extraordinary in light of all the freebie flights and the salmon fishing trips and the superyachts and luxury RVs the justices have, we’ve learned, been accepting. So, what’s the law that SCOTUS just gutted?

Mark Joseph Stern: This law targets anyone who corruptly solicits, accepts, or agrees to accept “anything of value”—any person intending to be influenced or rewarded. So it’s an anti-bribery statute but also an anti-gift statute because it expressly says that you cannot perform an official act and then be rewarded with some kind of present because you did that courtesy to a member of the public.

The facts of the case illustrate this problem well. James Snyder was a mayor of a town in Indiana. His administration gave a lucrative contract to a truck company. The company then turned around and cut him a check for $13,000 as a token of their appreciation. He is being “rewarded” under the terms of the statute. And yet Justice Kavanaugh, joined by the other five conservatives, essentially rewrote the statute to allow what he calls “gratuities,” like “gift cards, lunches, plaques, books,” or even checks. Just cold, hard cash. He says they are fundamentally different from bribes.

It’s not a bribe, Mark! It’s a post hoc tip. Can you talk about the ways he murders the text to get there?

The murder happens in plain sight! Kavanaugh basically says that “gratuities” are no big deal—they’re “often commonplace and innocuous,” like a family giving “a holiday tip to the mail carrier.” He says that state and local governments already have a variety of laws that prevent or punish the acceptance of gratuities for official acts, so why should the federal government have its own statute that covers the same thing? He suggests that the law is an affront to federalism, so it can’t be interpreted to mean what it says, because that would allow federal prosecutors to somehow overstep their bounds.

He doesn’t seem to understand that Congress passed this statute specifically because a lot of those laws in local governments aren’t enforced vigorously or at all. Sometimes local prosecutors might be on the payroll. Sometimes they might have special agreements or look the other way. Congress’ purpose here was to provide a baseline federal standard to protect Americans from this kind of corrupt conduct. But Kavanaugh just doesn’t see the conduct as corrupt, and I think that’s the fundamental problem with his decision. He doesn’t see it as corrupt for a mayor to accept a $13,000 check for rewarding a lucrative truck contract to some company that really, really wants it and asks for it with a wink and a nod, knowing what might happen afterwards. If you don’t have a solid agreement for a kickback in advance, he thinks, the exchange shouldn’t be illegal. That may or may not be good policy. But it’s not the policy Congress set for the country.

I want to take one more pull at the word corruptly, because it’s not just Kavanaugh who’s letting it do a lot of work: Justice Neil Gorsuch writes in a concurrence that he is very excited to parse the word. What’s he signaling?

Corruptly is a key word in another law: the federal obstruction statute that’s at issue in the Jan. 6 case, Fischer v. United States, which targets anyone who “corruptly” obstructs an official proceeding. There was a lot of talk about that word in Fischer. And in reading it so narrowly here, both Kavanaugh and Gorsuch may well be telegraphing their desire to read it narrowly there too, in favor of the Jan. 6 defendants. Gorsuch also brought up the rule of lenity, this principle that ambiguous federal statutes should be interpreted in favor of criminal defendants so they can have fair notice of what’s forbidden. His whole concurrence reads like a preemptive victory lap for prevailing in Fischer. I think he’s foreshadowing how the court will get away with gutting the obstruction law to let some 350 Jan. 6 defendants duck this very serious charge and potentially avoid prison time.

Justice Ketanji Brown Jackson’s dissent sounds as if she’s telling America the quiet parts about corruption and gifts and public trust out loud. She opens her dissent this way: “Officials who use their public positions for private gain threaten the integrity of our most important institutions. Greed makes governments—at every level—less responsive, less efficient, and less trustworthy from the perspective of the communities they serve.” She notes that Snyder’s “absurd and atextual reading of the statute is one only today’s Court could love.” She is throwing a little shade the way of Clarence Thomas and Sam Alito, who seem very comfortable taking … do I want to call them bribes? Do I want to call them gratuities? Do I want to call them million-dollar friendship bracelets?

Justice Jackson is throwing buckets of shade. I don’t think her opinion can be read any other way. She is eviscerating the majority’s vision of a good government, where public servants can get soft kickbacks for their official acts and that’s just fine. She’s saying this vision is fundamentally corrosive to a democratic government in which elected officials are supposed to be responsive to their constituents and to the citizenry at large, not to a narrow slice of wealthy people and corporations who happen to be in a position to reward them for their official acts. She explains how the court is basically just legalizing a form of bribery that’s done with a wink rather than a handshake. And by doing so, the court is undermining Congress’ ability to protect our collective right to a government that’s responsive and not corrupted by the wealthy and moneyed interests. It is still a profoundly corrupt act for a public servant to accept a “gratuity” with a knowing nod after doing a solid for his rich friend.

And this is how Thomas and Alito have justified their own corruption! They argue that they didn’t do anything in exchange for lavish gifts. They just happened to be handed amazing gifts after ruling for billionaires over and over again. All-expenses-paid vacations? Exotic getaways on a superyacht? They fell into these guys’ laps after they gave billionaires the right to buy elections or tried to shield them from a heavier tax burden. Isn’t it funny how that works!

So, yes, I think Jackson is blowing off some steam that’s maybe been gathering since the exposés of their corruption first dropped. She is using her dissent as an opportunity to tell the public that we should not buy into this naïve and narrow vision of corruption that the majority blesses here. It’s bad, whether some mayor in Indiana is doing it or Supreme Court justices are doing it.

This is part ofOpinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. AlongsideAmicus, we kicked things off this year by explainingHow Originalism Ate the Law. The best way to support our work is by joiningSlate Plus. (If you are already a member, consider adonationormerch!)