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, “Getting Out of Debt For Dummies”” wasn’t particularly 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.)
But the series pretty much answers all of life’s questions, from how to stop killing houseplants to understanding the basics of astrophysics.
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So, naturally, when confronted with last week’s dizzying patchwork from the U.S. Supreme Court, I turned to “Critical Thinking for Dummies” desperate to understand how “federalism” means one thing when the court talks about corruption, but something else entirely when it talks about abortion or guns.
Despite nearly 30 years as an attorney prowling the chambers of federal courts, my brain hurts.
Federalism’s new definition of corruption
Last week, Republicans on the Supreme Court stripped the executive branch of key power.
They also decided that bribing an elected official isn’t bribery if you wait a few days and call it a gratuity instead. In 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.
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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. James Snyder, former mayor of Portage, Indiana, stepped in it when he steered more than $1 million in city contracts to a local truck dealership, which then turned around and cut Snyder a $13,000 check.
Snyder called the money payment for consulting services; the feds called it illegal.
Snyder was convicted by a federal jury, sentenced to 21 months in prison, and appealed.
In reversing the decision, and writing for the 6-3 Republican majority, Justice Brett Kavanaugh admitted that federal law prohibits bribery, but determined that 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 if the feds apply section 666 alongside state enforcement, some hapless elected official could get “trapped” by a law that leaves him “entirely at sea,” guessing which expensive gifts he is allowed to accept.
“‘Just Say No’ for Dummies,” anyone?
Justice Ketanji Brown Jackson’s snarky and spot-on dissent called Kavanaugh’s “absurd and atextual reading of the statute” an interpretation that “only today’s Court could love.” Ignoring the advice she 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 Supreme Court’s Bruen decision struck down New York’s conceal carry law. Citing federalism four times, the court struck New York’s law 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, Texas’ blood-red Court of Appeals for the 5th Circuit followed Bruen and ruled that violent offenders under restraining orders could have guns because there was no law from 1790 that said they couldn’t.
Citing the Federalist papers nine times, Rahimi revealed the stink of Bruen’s “trapped in amber” jurisprudence, and left the Supreme 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 decision spurred by Donald Trump and animated by Republicans on the high court.
Whatever you think about abortion, bracket that opinion long enough to consider this: 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 effectively risk-free, while the maternal mortality rate is 32.9 deaths per 100,000 births. Vasectomies cost around $1,000; giving birth averages $19,000, to say nothing of more than $300,000 to raise a child. Ninety percent of vasectomies are reversible, while live birth causes permanent physical/chemical changes. Most importantly, for legal review, vasectomies, unlike forced birth laws, are nearly 100 percent effective.
Justice Samuel Alito (Photo via Erin Schaff / for AFP)
If the vasectomy question ever found its way to Justice Samuel 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, by popular vote, force women into nine months of medical confinement, financial instability and excruciating childbirth pain — too frequently leading to death — but this Supreme Court would invoke federalism (or its twin corollary “originalism”) to strike state-forced vasectomies as “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 columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack, The Haake Take, is free.
