I love the “for Dummies” book series. They can teach an old dog new tricks without making the old dog feel stupid, although, I admit, “Get out of debt for dummies” wasn’t all that useful. Turns out one must spend less than one earns; if they had just written that on the cover, I’d be $18.79 closer to my financial goals.
The series pretty much answers all life’s questions, from how to stop killing houseplants to the theory of relativity. So, naturally, when confronted with last week’s dizzying patchwork from the U.S. Supreme Court, I turned to “Critical thinking for dummies” trying to figure out how “federalism” means one thing when the court talks about bribery, but something entirely different when it talks about abortion or guns.
Federalism’s new definition of corruption
Last week, Republicans on the Supreme Court decided that bribing an elected official isn’t bribery if you wait a few days and call it a gratuity instead. In the case of former Portage Mayor James Snyder, six conservative justices agreed that gifts, money or things of value from grateful citizens who simply wish to “thank” public officials for their service is a “gratuity,” not a “bribe,” so the federal bribery statute doesn’t apply.
No doubt Clarence Thomas, who has been thanked to the tune of $4 million for his devotion to guns, fossil fuels and culture wars, appreciated his colleagues’ skillful parsing.
Before conservatives got out their X-acto knives, the federal anti-corruption statute, 18 U.S. Code § 666, made it “a crime for most state and local officials to corruptly solicit, accept, or agree to accept anything of value intending to be influenced or rewarded in connection with” any business or transaction worth $5,000 or more. Snyder stepped in it when he steered more than $1 million in city contracts to a Great Lakes Peterbilt, which then turned around and cut Snyder a $13,000 check.
Snyder called the money payment for consulting services, which no one could find any record of him doing; the feds called it illegal.
Snyder was convicted by a federal jury in Hammond in 2021, sentenced to 21 months in prison, and appealed.
Reversing, and writing for the 6-3 Republican majority, Justice Brett Kavanaugh said bribing an official up front wasn’t the same as tipping them for highly agreeable service after the fact. Treating mere “gratuities” like bribery, he wrote, would infringe on “bedrock federalism principles” and thereby offend States’ “prerogative to regulate” graft for themselves. Kavanaugh reasoned that some “hapless elected official” could get “trapped” by a law that leaves him “entirely at sea,” guessing which gifts he is allowed to accept. ‘Just Say No’ for Dummies, anyone?
Justice Ketanji Brown Jackson’s snarky and spot-on dissent called this “absurd and atextual reading of the statute” an interpretation that “only today’s Court could love.” Ignoring advice she could have read in “Blind Deference for Dummies,” Jackson wrote forcefully that, “The Court’s reasoning elevates nonexistent federalism concerns over the plain text” of the federal anti-corruption statute.
Federalism means something else when it comes to guns
The court’s newfound respect for state law on corruption — finding there was no corruption — is hard to square with its earlier decisions annihilating state law. Take guns for example. In 2022, the Court struck down New York’s conceal carry law in the Bruen case, citing Federalism four times, because the state couldn’t identify a concealed carry law that existed in 1790. Never mind that colonial-era muskets, pistols, and bayonets were too large to be concealed in anyone’s haversacks; colonial law didn’t bar people from strapping loaded cannons onto their backs either.
But then, last week’s Rahimi case about domestic violence and guns forced conservative justices to see Bruen’s “historical antecedent” absurdity up close. In Rahimi, the Court of Appeals for the 5th Circuit followed Bruen, ruling that violent offenders under restraining orders could have guns because there was no law from 1790 that said they couldn’t.
Rahimi, which cited the Federalist papers nine times, exposed the stink of Bruen’s “trapped in amber” jurisprudence, and left the Court with a choice: stick to Clarence Thomas’ wholly made up “historical antecedent” requirement by arming known violent offenders — and shed the Court’s last hair of credibility — or follow common sense and admit they were wrong. They didn’t quite admit error (see, “Reluctant mea culpa for Dummies”), but they did decide that violent men who brutalized their victims ought not have a gun to finish the job.
Using Federalism to defeat Equal Protection
This rant closes, as it must, with Dobbs, another bombshell wrought by Trump and the Republicans on the high court.
Whatever you think about abortion, bracket that opinion long enough to consider: Would federalism allow states to mandate vasectomies for all men under 50, given that states now have the power to make life and death decisions without regard to pesky strictures of Equal Protection?
If state legislatures truly wanted to end abortion, wouldn’t mandatory vasectomies make more sense than state-forced birth? Vasectomies are risk-free; the maternal mortality rate is 32.9 deaths per 100,000 live births. Vasectomies cost around $1,000; giving birth averages $19,000, and more than $300,000 to raise a child. Ninety percent of vasectomies are reversible; live birth causes permanent physical/chemical changes. Most importantly, for legal review, vasectomies, unlike forced birth laws, are nearly 100% effective.
If the vasectomy question ever found its way to Alito, you can bet he would tap the 14th Amendment’s guarantee of Equal Protection for men, even as he callously denied it for women. States can now force women into nine months of medical confinement and excruciating childbirth pain that too often leads to death, but this Court would buck federalism and find state-forced vasectomies “mere pretext” for “invidious discrimination” against men.
Up next: “How to impeach justices who lie to Congress during their confirmation hearings for dummies.”
Sabrina Haake is a federal trial lawyer. She writes the Substack newsletter The Haake Take.
