SCOTUS Sure Picked an Appalling Decision to End the Term With

By Dahlia Lithwick, Slate

28 June 16

Entry 21: Dietary supplement peddlers: They’re just like you and me.

n the other big decision of this final day of this term, the Supreme Court unanimously decided to vacate the federal bribery conviction of Virginia Gov. Robert McDonnell on the theory that the corruption law under which he was convicted was too broadly defined in the courts below. The guts of Chief Justice John Roberts’ opinion involved him parsing the meaning of the words official act in order to determine whether the former governor’s “tawdry” actions in connection to Jonnie Williams—a Virginia businessman who wanted McDonnell’s support in pushing a tobacco-based nutritional supplement—rose to the level of corruption.

To be sure, Roberts is clear that he finds the whole gifts-for-access enterprise pretty darn hinkey. He concludes with a paragraph assuring we, the people, that “there is no doubt that this case is distasteful; it may be worse than that.” He then adds that “our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns.” The only issue here is the court’s interpretation of the term official act and limiting the reach of the federal bribery statute. Roberts makes clear what the definition is to be:

An “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” That question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that question or matter, or agree to do so. Setting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of “official act.”

Now I know someone at this table will surely differ with me and assure us that it was good and proper for the Supreme Court to end its most intensely political term with a unanimous decision vacating a corruption conviction for a public official on the general theory that “everybody does this every day.” But seriously, merits aside for just a moment, how badly should America hate a guy who set up meetings and speeches and events at the governor’s mansion and afforded limitless access to a grifter able to purchase all that for the Falcon’s Crest price of a Rolex, designer dresses, a Barbie dream wedding, and the use of the Ferrari? Worse still, the unanimous court supports its reading of the federal anti-corruption statute with the amicus briefs that impressively cross all party lines to reveal that attorneys general and state officials of every political stripe agree that the federal anti-corruption statute sweeps too broadly. Good to know that the only thing our elected officials can agree upon in this deeply partisan day and age is that it isn’t corruption unless they say it is.

In an adorable aside, Roberts suggests that what Williams was buying with all the gowns and Rolexes is not really all that different from the access any elected official affords his constituents who are union members and homeowners. In a little meditation you might title “Dietary Supplement Peddlers: They’re Just Like You and Me,” he notes that everyone wants this kind of scrupulous attention from his or her legislators:

The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm.

It’s enough to make you want to break out in a few versus of “If I Had a Rolex” …

So that’s the law. Garrett Epps called this “defining corruption downward,” while the court seems to call taking a Rolex in exchange for neutrally arranging some meetings “responsive governance.” But of course, when the entire public is more and more convinced—thanks in part to the court’s ruling in Citizens United—that business as usual in government consists of millionaires buying access to their elected officials, it’s not clear that the court’s best and most savvy response should be to rule unanimously that since this is merely how government is done we should all stop calling it corruption.

I’m certain one of you will convince me of the need to curb all the malicious political prosecutions by overzealous prosecutors and that tightening the definition of “official acts” as the court did today will not severely harm anti-corruption prosecutions. But did the court seriously want to end the term with a clarion announcement that—in the ever uglier fight between an establishment in thrall to the highest bidder and the great disconnected powerless masses—it wishes to ally itself firmly behind the forces of plutocracy? It’s a choice, I guess. But I’d query whether this was the hill I’d want to die on if I didn’t want people to think the court was elitist and out of touch.

Unrelatedly but still awesome, Merriam Webster reports Monday that “lookups for ‘faute de mieux’ spiked 495,000 [percent] today after the French phrase was used in an opinion written by Supreme Court Justice Ruth Bader Ginsburg.” It isn’t quite argle bargle. But it’s something …