The Flipped Dynamics on Federal Criminal Law

One of the more remarkable changes at the Supreme Court in recent years has been the flipped dynamics on federal criminal law. Synder v. United States turns on the line between a bribe and a gratuity. A generation ago, if Snyder v. United States came to the Supreme Court, it would have been a 7-2 ruling in favor of the federal government. The Court’s conservatives and moderates would have gladly agreed with the Solicitor General’s reading of the Section 666 (if ever there was an aptly numbered statute), with Justices Brennan and Marshall in dissent.

But today, the vote is just the other way. Justice Jackson wrote a dissent, joined by Justices Sotomayor and Kagan, upholding the SG’s broad reading of federal criminal law. Jackson wrote:

We took this case to resolve “[w]hether section 666 criminalizes gratuities, i.e., payments in recognition of actions the official has already taken or committed to take, without any quid pro quo agreement to take those actions.” Pet. for Cert. I. The majority today answers no, when the answer to that question should be an unequivocal yes.

And Justice Kavanaugh, for the Court’s other conservatives, ruled in favor of the criminal defendant:

The Government asks this Court to adopt an interpretation of §666 that would radically upend gratuities rules and turn §666 into a vague and unfair trap for 19 million state and local officials. We decline to do so. Section 666 is a vital statute, but its focus is targeted: Section 666 proscribes bribes to state and local officials, while allowing state and local governments to regulate gratuities to state and local officials

Justice Jackson’s dissent gestures to this flip, pointing out how only “today’s” Court could reach this holding:

Snyder’s absurd and atextual reading of the statute is one only today’s Court could love.

Who is the conservative and who is the liberal here?

Jackson charges the majority with outright judicial activism–a common theme in her opinions:

Both the majority and Snyder suggest that interpreting §666 to cover gratuities is problematic because it gives “federal prosecutors unwarranted power to allege crimes that should be handled at the State level.” App. 14–15 (emphasis added); see also ante, at 10–11. But woulds, coulds, and shoulds of this nature must be addressed across the street with Congress, not in the pages of the U. S. Reports. We have previously and wisely declined “to express [a] view as to [§666's] soundness as a policy matter.” Sabri, 541 U. S., at 608, n. But, today, the Court can stay silent no longer. Its decision overrides the intent of Congress—and the policy preferences of the constituents that body represents—as unequivocally expressed by the plain text of the statute.Respectfully, I dissent.

I haven’t done a deep dive, but my tentative observation is that the SG is filing fewer petitions on federal criminal issues. Perhaps better to maintain some favorable circuit precedents than risk setting adverse nationwide precedents.

A subtext of this opinion, though not stated, are gifts given to the Justices. The majority opinion lists a wide range of policies that limit gifts to government officials. But the dog that did not bark is the Supreme Court’s own ethics code.

Justice Kavanaugh also gave Caitlin Clark a shout-out. See if you can find it.

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