The Court Can’t Think Straight When It Comes to Corruption
7 min read
The bid-rigging scheme was a classic of the genre. A small Rust Belt city needed new garbage trucks. Its mayor and two of his donors needed money. The mayor, a struggling mortgage lender, owed years’ worth of back taxes; the donors were two brothers desperate to save the truck dealership they’d spent the past few years running into the ground. So the mayor fixed things to steer the garbage-truck contracts to the brothers, a million-dollar cushion under their failing dealership. Thankful for this good turn, they cut the mayor a check for $13,000 ostensibly for some consulting work, the substance of which was never clear.
The feds caught on to this arrangement, and in 2021, the mayor, Jim Snyder, was tried and convicted on corruption charges. On Wednesday, in Snyder v. United States, the Supreme Court threw out the verdict in a 6–3 vote, with the three liberal justices dissenting. The majority cut in half the federal law Snyder was convicted of violating. That law, the Court held, applies to bribes promised or dispensed before any official action is taken but not to “gratuities”—rewards, as the majority put it, “given as a token of appreciation after the official act.” The majority reached its conclusion by pointing to various indicators that, in its view, showed Congress never intended the law to dictate whether state and local officials can or can’t accept gratuities. As far as federal law is concerned, state and local officials are now generally free to accept gifts small and large—$13,000 checks, lavish vacations, cash-stuffed valises—from the beneficiaries of their actions in office. (State and local laws still apply to them, but only a small fraction of corruption cases are brought by state prosecutors.)
The dissenting justices primarily attacked the majority’s shoddy interpretation of the law at issue, accusing the conservative bloc of betraying its purported devotion to textualism to reach its preferred outcome. But they leveled another accusation too, one that extends well beyond the Snyder case—and in which the liberals themselves have been complicit.
To read the majority opinion, the case had little to do with Jim Snyder or the very real risks of legalizing a pervasive form of graft, even as the public worries about money corrupting politics and as trust in government to do the right thing sinks to historic lows. Instead, for the majority, the case was really about the threat that anti-corruption law poses to modest expressions of gratitude. If Snyder could be charged with taking a $13,000 reward for rigging city contracts, didn’t all such thank-you gifts pose the risk of indictment? Justice Brett Kavanaugh peppered his majority opinion with examples of what he feared ruling against Snyder would put at risk. Prosecutors, he fretted, could file indictments anytime “parents send an end-of-year gift basket to their child’s public school teacher” or homeowners give “thank-you gift cards, steak dinners, or Fever tickets to their garbage collectors.” He had a thing for the latter, asking elsewhere in the opinion, “Is a $100 Dunkin’ Donuts gift card for a trash collector wrongful?”
If these examples sound far-fetched, it’s because they are. In his opinion, Kavanaugh pronounces this state of affairs “a very serious real-world problem.” Yet neither Snyder’s high-powered legal team nor the justices themselves pointed to any actual cases of such prosecutorial overreach.
Hypothetical scenarios are inevitable in a common-law system, as ours is, in which judicial rulings constitute new law. Judges need to consider the broader implications of how they resolve the disputes before them, because their decisions create rules that govern future cases. Yet hypotheticals can be dangerous too, letting judges elide the real-life implications of their rulings.
The Snyder decision is the latest installment in a long-running Roberts Court project to curtail the reach of anti-corruption law, a period that has seen the number of federal corruption indictments filed each year nearly halved. It’s a subject I examined earlier this year in a story for The New York Times Magazine about a $60 million bribery scandal in Ohio. While reporting it, I was struck by the high court’s ready replacement of the ugly reality of its corruption cases with a fictional world of political innocents railroaded for engaging in civic life—turning away from instances of actual corruption to inhabit a Mayberry of the mind. Corrupt dealings become the ordinary give-and-take of politics. Venal officials become conscientious politicians serving their constituents. Palm-greasing businessmen become everyday voters living in fear of domineering prosecutors.
The primary effect of all these hypotheticals is to soften the portrait of corruption in American politics to the point that punishing innocents appears to be an inherent feature of anti-corruption law. But they have a secondary effect as well. With heavy reliance on hypotheticals comes the risk of an unconscious tell—a Freudian slip in which judges reveal more than they mean to.
Take, for example, a 2016 case in which the high court unanimously undid the bribery conviction of Bob McDonnell, who as governor of Virginia had used his office to boost a Richmond businessman’s tobacco-based nutritional supplement. In exchange, the businessman had given McDonnell and his wife more than $175,000 worth of weekend trips, golf outings, loans, and gifts, including a Rolex.
If McDonnell’s bribery conviction were allowed to stand, Chief Justice John Roberts speculated, it might discourage legitimate political activity. “Homeowners who wonder why it took five days to restore power to their neighborhood after a storm,” Roberts wrote, might be reluctant to seek help from their elected representative if they had once invited him “to join them on their annual outing to the ball game.” Government officials do get invited to baseball games but typically not by concerned citizens. That’s the province of white-shoe-law-firm partners, K Street lobbyists, and big-money political donors—the justices’ peer group, in other words. A non-hypothetical example I encountered while reporting on the Ohio bribery scandal: a wealthy CEO inviting a powerful lawmaker to watch the Home Run Derby and the All-Star Game from his corporate box.
Last year, the Court—again unanimously—threw out the conviction of a top New York gubernatorial aide who, while on temporary leave to run then-Governor Andrew Cuomo’s reelection campaign, had taken $35,000 from a real-estate developer to help him secure a lucrative state contract. If federal law criminalized what the aide had done, Justice Samuel Alito worried, then “it could also be used to charge particularly well-connected and effective lobbyists.”
In the Snyder case, Kavanaugh ignored the dissent’s efforts to call attention to the sordid world of pay-to-play politics that his hypotheticals seemed tacitly to endorse. This was also true when the case was argued, in April. The justices brushed aside the government lawyer’s repeated attempts to focus them on what was actually at stake in the case. A running theme during oral argument was the Court’s mistrust of juries, a rare democratic feature of the judiciary. Justice Elena Kagan raised the legality of a billionaire bumped ahead of the rabble on a surgery waitlist, with hospital administrators angling for a multimillion-dollar donation. A jury wouldn’t like it, but this couldn’t be a crime, Kagan insisted, because “probably every hospital in America does it.” Universities too, she observed, a perhaps unwitting nod to her own fundraising days as Harvard Law School dean. (Kagan did, in the end, join Justice Ketanji Brown Jackson in her dissent, apparently satisfied by the focus on federal guardrails that have kept such scenarios purely hypothetical.)
The court’s liberal bloc has consistently dissented in the other strand of corruption cases, the ones striking down campaign-finance laws, such as Citizens United. Yet until the Snyder case, the liberal justices had signed on to the Roberts court’s attack on criminal corruption law. Some legal scholars have argued that, unlike abstract debates over electioneering rules, the criminal cases get personal for the justices. Their hypotheticals, in which even the imagined everyman behaves like their wealthy peers, suggest that what’s animating the justices, as the Fordham law professor Zephyr Teachout put it recently, is “a deep sense of identification with the political advisors and officials who are the targets of these investigations.” Recent empirical studies provide compelling evidence that Supreme Court justices, like the rest of us, are susceptible to in-group favoritism—to feel an uncommonly high degree of sympathy for people like themselves.
The Snyder case cuts closer still. Alito and Justice Clarence Thomas aren’t the only justices to accept gifts from wealthy acquaintances, including some who are often before the Court. The liberals and conservatives alike accept all-expense-paid trips to speak or teach at universities and law schools. Schools at times fundraise off these events, lavish university-themed gifts on the justices, or buy stacks of their books to sell—on occasion, at the urging of Justice Sonia Sotomayor’s staff, even more than they’d planned to. Evidently, these considerations weren’t far from Kavanaugh’s mind when he was drafting his opinion. Is a crime committed, he wondered, when “a college dean gives a college sweatshirt to a city council member who comes to speak at an event”?
A few minutes into debating Kagan’s billionaire patient with the justices, the government’s lawyer discerned a subtext. “What I’m hearing today,” she said, “is there are some gifts that just aren’t corrupt.” The justices made no effort to correct her and promptly changed the subject. To spare the imagined schoolteachers or garbage collectors—and the very real billionaires—the threat of legal sanction, Americans must be content to live under a government that, if not exactly for sale, works for tips.
