A bizarre day in the Supreme Court

June 27, 2024

It was a bizarre day in the Supreme Court. But first, President Biden issued a proclamation on Wednesday that granted pardons to members of the military court-martialed and dishonorably discharged for violation of the Military Code of Conduct because of their sexual orientation or gender identity. The Proclamation provides in part as follows:

[A]cting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Joseph R. Biden Jr., do hereby grant a full, complete, and unconditional pardon to persons convicted of unaggravated offenses based on consensual, private conduct with persons age 18 and older under former Article 125 of the Uniform Code of Military Justice.

The proclamation orders the departments of the military to create a procedure for granting certificates of pardon to those eligible under the proclamation. The proclamation recommends that those who receive pardons apply for an upgrade to their military discharge.

The pardons granted by President Biden will be life-changing for veterans who were court-martialed and dishonorably discharged because of their sexual orientation or gender identity. Many have been denied employment, security clearances, promotions, VA loans, and other VA benefits. The law under which they were court-martialed and dishonorably discharged was repealed in 2013.

President Biden’s pardons were an act of mercy and justice. They could not present a starker contrast to the unwarranted, corrupt, self-interested pardons granted by Trump designed to help him avoid prosecution. As with almost every point of comparison, one man is a decent, honorable person and the other is reprehensible. That difference will decide the election.

---

The Supreme Court’s bizarre day

The Supreme Court issued one opinion and accidentally posted and promptly withdrew a second opinion. Both opinions show a Court that has lost its way.

In the first opinion, the Court took leave of common sense and ruled that if parties to a bribe claim that it is a gift, then the federal bribery statute does not apply. Wow! It is clear that no members of the reactionary majority ever served as prosecutors! If they had, they might have applied a real-world view of how corruption works—i.e., the participants lie to cover up their true intent and rarely document their corrupt scheme in a notarized document.

The Court begins its analysis by explaining the difference between a bribe and a gift. (I am using the synopsis of the case below because it is shorter and less cluttered than the text of the actual opinion.)

[B]ribes are typically payments made or agreed to before an official act in order to influence the public official with respect to that future official act.

Gratuities are typically payments made to a public official after an official act as a reward or token of appreciation

But the reactionary majority was willing to believe that a bribe described as gift is a gift. Because, hey, no one would ever be smart enough to wait until after the corrupt act to grant a reward in exchange! See Snyder v. US.

In fairness to the reactionary majority, they claim they were motivated by a sincere concern for “bedrock principles of federalism” in which states regulate “gratuities” and the federal government regulates bribery.

Or, as the reactionary majority put it,

Generally, States have the “prerogative to regulate the permissible scope of interactions between state officials and their constituents.” The differing approaches by the state and local governments reflect policy judgments about when gifts expressing appreciation to public officials for their past acts cross the line from the innocuous to the problematic.

Those carefully calibrated policy decisions would be gutted if the Court were to accept the Government’s interpretation of [the federal anti-bribery statute]. Reading [the statute] to create a federal prohibition on gratuities would suddenly subject 19 million state and local officials to a new and different regulatory regime for gratuities.

The Court should hesitate before concluding that Congress prohibited gratuities that state and local governments have allowed.

Got it? The reactionary majority is only concerned that states should be allowed to regulate “gratuities.” So, what does the Court thinks qualifies as a gratuity? Here are the facts of the case:

The mayor of Portage, Indiana, awarded two contracts to a local company to purchase five trash trucks. One year later, the truck company gave the mayor $13,000. The mayor claimed the check was for “consulting services” provided in connection with the purchase of the trucks, while federal prosecutors claimed that the payment was an illegal gratuity prohibited by the federal anti-bribery statute.

The reactionary majority concluded that the federal antibribery statute does not reach “gratuities” paid “in appreciation for past acts.” Hmm . . . kinda like Justices Thomas and Alito accepting lavish travel and other financial benefits from conservative billionaires and right-wing advocacy organizations. As long as the justices accept obscene “gratuities” after they issue decisions that overturn decades of settled precedent, it is not a bribe, according to the majority. For a detailed discussion, see Ian Millhiser in Vox, The Supreme Court rules that state officials can engage in a little corruption, as a treat.

The opinion in Snyder v. US was made possible by the support of two justices implicated in bribery. The opinion stinks of corruption! But it gets worse. Read on!

---

The Court posts, then retracts, a decision on abortions during emergency medical treatment

In an embarrassing technical mishap, the Court prematurely posted an opinion in Moyle v. US. The opinion was retracted minutes later, but not before Bloomberg downloaded a copy of the draft opinion. The Court later admitted that the draft was posted erroneously.

But the worst part was not the mistaken publication of a draft. It was what the draft said. See Mark Joseph Stern,  The Supreme Court’s new leaked abortion draft reeks of cynicism.

Although the details are a bit complicated, here’s the gist: The Supreme Court granted an unusual form of review to take a case away from the Ninth Circuit Court of Appeals before the appellate court had the opportunity to decide the appeal on the merits. In doing so, the Supreme Court prevented the Emergency Medical Treatment and Labor Act (EMTALA) from going into effect—thereby denying patients in emergency rooms access to abortions in life-threatening circumstances.

However, after sitting on the case for months, the Supreme Court has concluded that it should never have granted expedited review. So, the Supreme Court is sending the case back to the Ninth Circuit. And—just by lucky coincidence—that procedural delay will avoid a pre-election ruling in which the Court issues an unpopular decision allowing states to deny abortions in medical emergencies.

Per Mark Joseph Stern,

This outcome reeks of a cynical compromise, secured by the more tactical conservative justices, to push this explosive issue past this fall’s election. The Republican Party’s position—that states may force patients to the brink of death before allowing them to terminate a failing pregnancy—is politically toxic.

A Supreme Court decision allowing states to impose such a draconian policy could hurt Republicans, and Donald Trump specifically, in November. The three less-extreme conservative justices may have therefore figured out a way to punt the case.

Yet they also gave us good reason to believe that when it comes back around next year, they will side with the red states that wish to enforce their abortion bans against patients in extreme medical distress.

In the end, the reactionary majority will uphold state laws overriding protections of the federal EMTALA—but they will do so when the election is over. It is difficult to imagine a more cynical, partisan, corrupt decision. Worse, the uncertainty created by the Court’s deliberate procedural sidestep will extend the period during which doctors will be hesitant to grant lifesaving care that may—or may not—be protected by the EMTALA.

Of course, the draft decision may not reflect the final decision of the Court. We will find out in the next two days if there are any changes to the opinion.

---

Opportunity for Reader engagement

Reader Mary Ellen R. sent the following note about an effort to lift the ratification deadlines for the Equal Rights Amendment:

After the ERA was ratified by the required 38 states, H.J.Res.25, which removes the ratification deadline was referred to committee on January 31, 2023. A discharge petition (Discharge Petition #6) that will move the resolution to the floor has been signed by 212 Democratic members of Congress.  The petition requires 218 signatures. There are two Democratic holdouts, Bobby Scott of Virginia and Richard Neal of Massachusetts.  In addition to these two, we need 4 Republicans.  If your readers are in Scott's or Neal's district or if they have a Republican representative in Congress, please ask them to call and write their representatives encouraging them to sign Discharge Petition #6.

For extra credit, sign4era.org is circulating a grassroots petition which already has 100,000+ signatures.  Click on the link and sign the petition.  Join the fight for equality!

---

Concluding Thoughts

True to form, the NYTimes and WaPo were making news about themselves with two polls allegedly showing President Biden’s support is waning. However, the NY Times published a note explaining that its poll may have been skewed by a “new development”: “Republicans were significantly likelier to answer their phones and take the survey than Democrats or independents.”

Uh, okay. If a pollster detects an anomaly in poll responses, what is the appropriate course of action? (a) Adjust the data to account for the anomaly; (b) re-run the poll until you obtain a valid sample; or (c) publish the poll anyway. The Times opted for (c). Of course, it did.

The Washington Post published a survey saying that most voters believe Trump will try to be a dictator, but they trust him over Joe Biden on issues related to “democracy.” Those two findings contradict one another. When a jury renders contradictory verdicts, they are usually thrown out because the contradictions show that the jury did not understand the questions it was asked to decide.

The same is true of the Post’s survey. Oh, and there is the fact that WaPo conducted the survey with George Mason University, home of the Antonin Scalia School of Law. George Mason is rated as one of the most conservative universities in the nation and is subsidized by Koch Industries, which has been granted unique access in appointing professors and running a think tank at the university.

So . . . ignore the polls. That is hard to do. I turned off MSNBC today when Alex Wagner began with a report on the NYTimes poll that treated the Times’ polling as true and accurate. Similarly, the WaPo report is getting a lot of traction despite the biased co-sponsor of the poll.

Major media outlets are failing democracy when it matters most. Seek out and support independent, reliable voices. Substack is a good place to start; it is populated with writers who are not beholden to billionaires, foreign media conglomerates, or clickbait advertising.

We will make it through this together—we just need to keep our wits about us and not fall for every story published by the major media or on the internet. If a story seems suspicious—it probably is. Just like the Supreme Court’s decisions released (and retracted) on Wednesday.

Talk to you tomorrow!