Snyder v. United States

We will hear argument first this morning in case 23108,

Snyder v.

United States.

Hey, everyone, this is Leon from Prologue Projects.

On this episode of 5-4, Peter, Briannan, and Michael are talking about another case from this most recent term, Snyder v.

United States.

In the case, a former Indiana mayor named James Snyder received a gratuity from a company he had granted a lucrative contract.

He was convicted of bribery, but then appealed.

His attorneys argue that prosecutors never proved it was quid pro quo, and that punishing Snyder for money given after the fact criminalizes normal gift giving.

The conservative majority agreed.

This ruling is yet another in a line of holdings that seriously challenge the proposition that laws are real.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our civil rights confused and sad, like a young gay man just coming out of a K-hole two weeks after pride.

I'm Peter.

I'm here with Rhiannon.

Hey, hey, y'all.

And Michael.

Full disclosure, our very gay producer helped with that one.

So it's actually not problematic that I said it.

I thought Michael's sigh was going to be like, oh, you know, like different circumstances, but I'm also coming out of a cable.

God, I wish.

I wish.

I wish.

Today's case, Snyder v.

United States.

This is a case from the end of this term about bribery.

Or is it?

Is it about bribery?

Maybe it's just about gifts among friends.

Maybe it's just about a little tip to your waiter.

Yeah.

Yeah.

Are you bribing your waiter for good service, Peter?

Wow.

God, fucking trapped with logic once again.

This case hinges on a distinction between bribery and what are called gratuities.

Bribery is where money or favors are promised to a government official in exchange for some government action.

A gratuity is when a government official does something, and then after the fact, someone who benefited from that says, Hey, thanks, and gives them some cash.

There's no agreement to do it in advance, it's just a little tip.

A reward for a job well done.

Yeah, yeah.

In this case, James Snyder, the former mayor of Portage, Indiana, handed out government contracts for garbage trucks totaling over a million dollars to a certain truck company.

That company then gave him $13,000 after he requested cash from them.

Yes.

Snyder claimed that it was payment for consulting services.

However, a jury of his peers disagreed, probably because he was very provably lying.

And then he was convicted under a federal law prohibiting such payments.

But he challenged that law, saying that it doesn't cover gratuities like the one that he received.

And the Supreme Court, in a six to three decision,

agreed with him.

That's right.

So Ri, I'll hand it off to you.

Yeah, I just want to emphasize, again, this kind of like difference in the law.

The majority opinion makes kind of a big deal of it, but, you know, there's a bit of like distinction without a difference here.

The law does make a difference between two kinds of these payments to public officials, right?

There's a bribe and then there's a gratuity payment.

A bribe, like Peter said, it's a payment usually made before an official act happens in order to like influence the public official, right?

I'm giving you a Rolex so that you award me these private contracts or whatever.

Whereas a gratuity is like an after-the-fact token of appreciation, little tip to say thank you.

But the law does treat both of these things as corrupt.

When a gratuity is made in a corrupt way, when a gratuity is given unethically, that is illegal, right?

So

was

it illegal?

It used to be.

Yeah, yeah, it used to be illegal.

So under federal law and also under many state laws, if a public official accepts a bribe or a gratuity, these public officials could face prison sentences, right?

These are crimes under federal and state law.

The law at issue in this case, and we'll get into the specifics more in just a little bit, but the law at issue in this case makes it a federal crime for a public official to corruptly solicit, accept, or agree to accept certain payments in connection with business worth $5,000 or more.

So if you're a public official and in your official capacity and as part of sort of government business, you do a deal worth $5,000 or more, you do some business worth $5,000 or more, and you accept a payment for that afterwards in a corrupt way, that is a crime under this statute.

So, turning to this case, James Snyder, he was the mayor of Portage, Indiana, back in 2013.

And as mayor, he awarded two contracts to a local truck company.

He purchased five trash trucks from the company on behalf of the city, right?

This is a city deal.

And this deal totaled $1.1 million to this trash truck company.

So the next year, the truck company wrote Snyder a $13,000 check.

Now,

raised some flags for some law enforcement officials.

So the FBI investigated.

Federal prosecutors indicted Snyder for accepting an illegal gratuity, and he went to trial, and a federal jury convicted him of accepting that illegal gratuity.

The judge sentenced James Snyder to one year and nine months in prison.

But Snyder appealed, saying, no, no, no, no, no.

Actually, this law only makes a bribe illegal, not a gratuity, not an after-the-fact little gift, right?

The Seventh Circuit affirmed that conviction, said, yeah, no, you did illegal stuff.

And yeah, no, you are guilty.

But Snyder, of course, appealed it.

even further than that.

And that's how we get to the Supreme Court.

Before we get into the opinion, I wanted to get into the details a little bit bit about the check.

The majority tries to avoid getting too specific on this because they're so ridiculous, but it's worth discussing how this check came to be, which is that Snyder went to the dealership in person and told them, and I quote, I need money,

and asked them for $15,000.

The dealership gave him $13,000.

When the FBI asked him about it, he said it was, oh, that was for consulting work I did for them.

At trial, employees testified he never did any consulting work.

He was unable to produce any written agreement, work product, or any evidence at all.

Show us a text message where you were consulting, bro.

Yeah.

And the guy who wrote the check testified that he was paid for, and I quote, an inside track.

So

those are the details of the check, check, how it came into existence.

Now, there's a little more context that I would like to give.

It's an important clip that we need to play here.

I'm in a waste management business.

Everybody immediately assumes you're mobbed up.

It's a stereotype and it's offensive.

All right.

So

let's talk about the law.

So the question here is whether the federal law that Snyder was convicted under applies to what happened.

The law is actually very simple.

I'm going to paraphrase very slightly, but it says that it's a crime to corruptly accept anything of value, quote, intending to be influenced or rewarded in connection with any government business.

So at a glance, this is pretty open and shut.

He accepted 13 grand as a reward for granting this company government business.

The statute clearly says that that's illegal.

But the conservatives on the court, they want this to be legal.

Right.

Because in case you don't follow the news, they love bribes.

Yes.

So here comes Brett Kavanaugh,

focused, head down, brow furrowed, cracking his knuckles.

They're all patting him on the back.

They're like, you got this, Brett.

Yeah.

Yeah.

Clarence Thomas is like, it's $5 million, right?

$5 million.

Brett, my livelihood depends on this.

Give it your best shot here, buddy.

What Brett says is that this law outlaws bribes, but it does not outlaw gratuities.

Again, the difference is that a bribe is when I pay you in exchange for you doing something.

A gratuity is when you do something and then I'm like, that was pretty cool.

And after the fact, I give you a little payment as a thank you.

So just to be clear, the difference isn't the timing of the payment.

It's whether there was an agreement in advance, right?

That's what distinguishes a bribe and a gratuity.

Either way, the court has an uphill battle here because the statute says it's illegal to accept a payment, quote, intending to be influenced or rewarded.

for government business.

A gratuity is obviously a reward, so it should be covered by the statute, right?

Right.

Now, Brett Kavanaugh says there are six reasons that when taken together suggest the statute does not cover gratuities.

Now, right off the bat, when someone says their opinion is based off of six arguments,

that has a real...

doth protest too much sort of quality to it, right?

Makes me feel very strongly that you were unable to come up with one actually good argument right at most i think i want to hear your top three you know one

you're like a dream come true two

just want to be with you three that's right kavanaugh to gratuity but right

so yeah when you say there are six arguments It's too desperate, you know?

It's pathetic.

I'm going to condense his arguments a bit, but let's just walk through them quickly.

The first portions of his opinion are mostly looking at another law.

There's a separate law that forbids bribery and gratuities for federal officials.

This one is about a law that forbids bribery and gratuities for state and local officials.

So

Kavanaugh spends a lot of time trying to say that you can infer from looking at the other law that this law isn't meant to cover gratuities.

He makes a lot of like factual and analytical errors in this portion, which Justice Jackson covers pretty well in her dissent.

I want to just keep this high level and note that it is bizarre as a general matter to do this at all.

We have a law in this case that clearly says government officials cannot accept a reward for government services.

Right.

Right.

Now, if you have a very vague or ambiguous law that you're trying to interpret, sometimes judges will look to other laws for guidance on how to interpret the law.

But this is not a vague or ambiguous law.

It very clearly says no rewards, right?

The majority spends the whole opinion pretending that this is ambiguous so that they can like do all of this weird shit where they're making a bunch of spurious inferences.

Like, oh, if you look at this other law.

and you like triangulate across the various different laws,

then perhaps it makes sense that reward in this case doesn't really mean what we all think reward means.

Yeah, this one's so confusing.

Right.

Yeah.

They're using like the tools you use to work through ambiguity

to render ambiguous what is a very,

very clear statute, right?

It's like

doing the analysis exactly backward.

The statute is not hard to read or understand,

and the conduct is obviously forbidden.

Like, what's the problem here?

Right.

There are a couple of other weird things here I want to mention very quickly.

First, the penalty for this crime is up to 10 years in prison.

Kavanaugh says that it's, quote, unfathomable that Congress would have wanted 10 years as a punishment for accepting gratuities.

So he's just being like, feels a little harsh to me.

Can't be right.

Can't be right.

I couldn't fathom it.

Yeah.

Yeah.

You will never in your life see the conservative justices questioning the penalties for any other criminal law that impacts normal people.

No.

When it's like three strikes laws and someone's going away for 25 to life for stealing golf clubs or whatever, they're like, that's the law, baby.

Yes.

Law's the law.

Who am I but a mere judge?

Exactly.

And with this one, he's like, can't fathom it.

And if I can't fathom it,

then it must not really be the law.

It can't be true.

Can't be real.

He also says that there are federalism concerns here.

Federalism, of course, the divide of power between state and federal government.

He says, generally, we should allow states to govern the conduct of their own government officials.

Okay, but that's sort of like a

low-key insane argument in this context.

Like, is he claiming that Congress does not have the power under the Constitution to pass this law?

No.

No, of course not.

He knows that they do.

He's just trying to throw as much shit at the wall as possible.

Yeah.

But if it's like truly a federalism concern, you could strike the law down as unconstitutional.

He's not going to do that because knows that it's a constitutional law.

He's just going to be like, ooh, I don't know about this one.

The penalty seems unfathomable.

And also, I have concerns about federalism.

This is truly like an AP

government question kind of thing, which is like so general.

Like, what are the ways that the Supreme Court could strike a law down?

And it's like, well, there could be federalism concerns.

There could be.

Vagueness.

Yeah.

You could basically say this about any federal criminal law, right?

Where it's like, ooh, shouldn't states be handling this?

Yeah.

It's just a non-argument.

Another weird thing he does is multiple times throughout the opinion, he notes that there are 19 million state and local officials in this country.

He says it six times, sort of like breathlessly, being like, look how many people are covered by this law.

I guess his point is that this is not a law that just covers like very powerful elites or something.

It covers a lot of people.

Good.

Yeah.

But like, yeah, it's a federal law.

I don't know what to tell you.

Yeah.

And the point is, like, it's not just anybody, it's a lot of people who are government officials.

Right.

You know, they have government power.

Government power.

And actually, those 19 million people probably affect most Americans' day-to-day lives

much more directly than federal officials.

So, like, yeah, they should be covered If they're corrupt, if they're fucking over their communities in exchange for bribes or gratuities, then that's the whole fucking point.

Like, yeah, yeah.

It's just, God, it doesn't make any fucking sense.

And it's so funny to me.

Like, if the government tries to do something, tries to like accomplish something for the benefit of the public.

The conservatives will be like, hmm, I don't know about this.

Government, government overreach, dangerous.

Should the government have this large of a role in our life but when someone literally just uses the power of government to enrich him and his friends they're like well yeah man

what do you think government's for baby that's this is what it's all about yeah yeah i want to quote one thing from the kavanaugh opinion before we move on

he says is a hundred dollar dunkin donuts gift card for a trash collector wrongful What about a $200 Nike gift card for a county commissioner who voted to fund new school athletic facilities?

Could students take their college professor out to Chipotle for an end of term celebration?

And if so, would it somehow become criminal to take the professor for a steak dinner or to treat her to a Hoosiers game?

So he's trying to say like this law is a slippery slope that could theoretically get people into trouble for all sorts of seemingly innocuous conduct.

Now, a few things here.

One, if you look at this law, this is probably just like not true.

Any bribe or gratuity under this law needs to be related to business worth five thousand dollars or more which probably wouldn't apply to your trash collector or your professor right one of these things a 200 nike gift card for a county commissioner who voted to fund athletic facilities i'm sorry but why should that be legal

you're just like i like the government thing you did here's two hundred dollars yeah yeah

Am I supposed to think that it's okay because it's a small bribe or something?

I don't understand.

I don't understand what Kavanaugh thinks the point is here.

It's like a bunch of conduct that like pretty plainly is not swept up into the law, plus an example of a pretty small and petty, but also like

problematic thing.

Yeah.

The county commissioner is an elected official, right?

Like a professor at a state school.

Like, okay, you know, maybe that's a government official in some senses of the word, but an elected official that votes on something and then I walk up to him and give him a gift for it?

No, that should be illegal.

And then if a bunch of parrots and boosters and whatnot all give him little gifts and he makes out with actually thousands upon thousands of dollars for his vote, yeah, maybe that's a problem.

Like maybe that's a fucking problem.

Yeah.

And then also, as the dissent points out, this law has a men's rear requirement.

The law says that the payment must be made corruptly, which wouldn't apply to taking your professor to Chipotle or whatever.

And then also,

this is something the court just doesn't need to address right now.

You don't need to worry about professors getting taken to Chipotle because in this case, the dude was cut a $13,000 check after gifting a company a million-dollar contract.

After stopping down to their place of business and telling them, I need money.

He gave them a big contract and then told them, I need money.

And they gave him money.

Right.

The scary hypotheticals do not apply in a really important way here, which is that in each of the hypotheticals, Brett Kavanaugh is describing a gift or gratuity that is actually a little bit indirect.

It's like it's one step outside of straight up giving cash to a public official, right?

Like it's a gift card, it's a dinner, it's very small scale, but that's not what happened here.

What happened here is they gave him $13,000, period.

You know, your argument sucks when you spend all of your time focusing on hypotheticals that didn't happen and none of it focusing on the actual facts of the case.

Which you've omitted from your opinion.

Right.

Because they are so bad for his argument.

Like, imagine the same paragraph where it's just like, is a $13,000 Dunkin' Donuts gift card for a trash collector wrongful?

All of a sudden, you're like, well, wait, what?

Maybe.

Why are we talking about that?

What are we talking about exactly?

Like, you can't describe the facts of this case in a way that sounds innocuous.

And at the end of the day, I just don't really understand why this matters.

Like, if the worst thing that you can possibly conceive of is that this law creates a world where college professors have an ethical obligation to turn down steak dinners or whatever, then like, I'm sorry.

I'm just, I guess I'm just not concerned about that slippery slope, right?

Like, I don't think you have a right to spend money buying shit for public officials.

And I don't think public officials have a right to accept gifts.

It's as simple as that, but Brett Kavanaugh wants you to believe that those rights are real and they are for some reason more important than the very clear language of this federal law, which at the end of the day, they can't get around.

They can't get around the fact that this law is like, yeah, no rewards for public officials.

They don't really have a good answer to that.

And that's why we instead get a very weak series of arguments out of Brett Kavanaugh here.

Yeah, exactly.

Yeah.

There is one concurrence.

It's from Neil Gorsuch.

It's just a couple paragraphs long, very smug.

What?

As is his signature move, his signature writing skill, where he basically says, you know, the opinion doesn't mention lenity, but lenity is what's at issue here, what's at play here.

Lenity is this concept in the law, where when

certain conduct is maybe not clearly prohibited by a law, we say that essentially like the tie goes to the defendant because we don't want to criminalize something without clear, fair notice in advance that the behavior was prohibited.

It doesn't make a lot of sense on the facts of this case.

Again, I think any public official could tell you that they could not go to the recipients of their government contracts and demand money from them.

I think the fact that Snyder lied to federal investigators about what the money was for is pretty clear evidence that he knew it was prohibited conduct, which also makes Lennady inappropriate here.

Also, you'll never see the Supreme Court talk about.

the role of Lennady unless it's freeing some fucking scumbag

who took a $13,000 bribe.

Exactly.

Right.

I do think Lenity is on their minds in a sense, but I think it's because, as Peter mentioned before, you don't have to think too hard to start to realize that what this guy did doesn't sound that far removed from some of the patronage relationships that Thomas and Alito have with their billionaire backers, right?

Where they are getting something that could be

fairly considered, at least plausibly considered, gratuities

from ideological allies

for ruling the way they want in cases.

And, you know, as we've said, this law is about state officials, but there is a corollary federal law.

And so I think Lennon's on their mind because Alito and Thomas don't feel like they've been breaking the law and don't feel like they've been subjecting themselves to potentially prison sentences for their behavior.

And I think their friends, the conservatives, are sensitive to that.

Yeah.

But I think we should lock them up.

Fucking Merrick Garland.

You fucking bum.

Catandre Brown Jackson dissents in this case.

She is joined by the other liberal justices.

And it's a very good dissent, you know, takes not only the law that's at issue here, breaks it down kind of piece by piece, goes through what this law was was designed to address, what this law was designed to prevent, right, or hold public officials accountable for, the history of the law, the text of the law, all of that.

But she also takes apart the majority opinion really well.

And then there's a little bit of like...

Sass.

There's a little sass.

There's a little snark.

I like to think of it as just kind of like directness, like kind of like a no bullshit calling out what is happening in the majority opinion.

Pretty early in the dissent, Jackson is talking about what Snyder, the corrupt mayor, is trying to argue, trying to really make a mockery of this federal statute and say that actually it only makes bribes illegal, but not gratuities, right?

And so Jackson says, quote, Snyder's absurd and attextual reading of the statute is one only today's court could love.

So, yeah, it's hard to know.

Yeah.

She might have just been calling them dumb, right?

But it feels like a pretty safe inference that she was like you know what I mean yeah exactly they are all bought and sold themselves yes

like she's saying it's the absurd and attextual reading she's saying that that's what the court is inclined to do is to do absurd and attextual readings but also you know it is a statute that's about corruption right and so only today's court could love it that's really that's really wonderful yeah there's like a dream world where she just drops a footnote being like

Clarence Thomas has taken $5 million in gratuities in the past 20 years.

Perhaps he should be recusing from cases such as this.

Yeah, yeah.

C E G.

We're obviously not going to get that footnote anytime soon.

And I think this might be as close as we can get.

Yeah, yeah, exactly.

Jackson also calls out in the dissent the sort of results-based adjudication, right?

That like they just want to get to the result that they want to get to and analysis be damned.

Like everything else is just absurd bloviating bullshit but their point is just to get to the holding that they want to get to like the brett kavanaugh unfathomable comment right it's unfathomable that this could be the outcome so we're going to interpret it differently yeah and she points out for example like the non-existent federalism concern you're just throwing in anything that sticks again just to get to your desired result so she says the majority's reasoning quote elevates non-existent federalism concerns over the plain text of this statute and is a quintessential quintessential example of the tail wagging the dog.

There's so many reasons why this majority opinion is such bullshit.

She kind of goes through all of them pretty systematically.

She talks about other anti-corruption laws that are on the books, other anti-corruption criminal federal laws.

She says there's a similar anti-corruption law that applies to bank employees.

And it very clearly applies to both bribes and gratuities.

And in the legislative history of Congress passing this law that's at issue in this case, it says very clearly that that the language and the purpose is supposed to track that other law, right?

Where it's very clear that bribes, gratuities, this corrupt accepting of payments by in that statute, bank employees should be applied to public officials in this law.

And then finally, I think one of the strongest points, which is something that we have said already, is that the majority opinion and the holding that they get to that gratuities are just not corrupt, period.

She says that the fact that the majority reached this holding, which is so incredibly sweeping, which just does away with anti-corruption law as it applies to gratuities, right?

Which says that gratuities are just not corrupt, they're not illegal.

She says, it's completely overbroad.

First of all, it's not really asked of us in this case.

And second of all, like the law at issue, it already only applies to some gratuities.

Like there is an understanding baked into this law that some gratuities, yeah, some gifts are okay.

And actually, that it's a crime when a gratuity is accepted in a corrupt way.

And there are elements of this law that, you know, sort of lay out for federal prosecutors and for a jury to decide and make that distinction, a nuanced one, the distinction between when a gratuity is given in an unethical way or accepted in an unethical way.

And I just want to add, you know, the dissent doesn't make this point that I recall, but a good way to think about gratuities is the way they still have effects on policy, even future policy.

As an analogy in other gratuity, when I got into a club early once and I could get cheap drinks, $5

gin and tonics.

And so I was leaving big tips.

And so then the bartender started paying a lot of attention to me, filling my drink up quickly coming to make sure i was okay giving me nice generous pours when you give nice gratuities you get attention which then leads to more gratuities and more attention and more gratuities and more attention and without ever sitting in like a back alley saying i'll give you this for that yeah exactly your policy preferences become the policy preferences of elected officials right it's an indirect bribe for future not yet decided upon official acts, right?

Right.

It's the same function as a bribe.

And this is why so many people,

when talking about Clarence Thomas, for example, miss the point.

They'll be like, well, do you really think that Clarence Thomas would like change his opinion in a case due to a bribe?

And it's like, that's not the point.

That's not how this relationship works.

The point.

is that he has a certain opinion, and then due to that, he received a bunch of gifts, right?

That is the same function.

It's bad for basically all of the same reasons.

It's a signal to any other judge that if you play ball, this largesse is waiting for you, right?

And he hangs out with them all the time.

So he's always aware of their position on whatever is going to be coming up.

So they don't have to have these specific corrupt conversations.

He knows what they think.

Exactly.

He knows what they want.

And because they're friends and they're buddies and they're his patrons, right?

That's his job is to know what they want and do it.

And he does.

Yeah.

And so, like, in the sweeping nature of this whole thing, it's completely unnecessary, Justice Jackson is saying, because the law already provides for like how you parse in between a gratuity that's okay and a gratuity that's illegal.

But instead, the majority, she says, gets quote, derailed on gift cards, burrito bowls, and steak dinners.

Yeah.

Yeah.

Right.

And I mean, to put it clearly, like, the law requires that any reward be corrupt, right?

When you are like, hey, professor, good semester.

Let me buy you Chipotle.

We really enjoyed your class.

You're not doing anything that would sort of impact his future behavior, right?

That says anything about his past behavior, really.

This is just not what corruption looks like.

The court wants to wash away all of that intent

because that gray area is where they thrive, baby.

That gray area is full of yachts and hunting trips and all of the accoutrements of the lifestyle that they want to live.

Exactly.

We are now many cases deep into the Roberts Court's jurisprudence on corruption.

You have cases like Citizens United, which wasn't about corruption in the strict sense, but allowed money to flow freely into elections.

You had McCutcheon v.

FEC, which did functionally the same thing.

You had McDonnell v.

U.S., where the court held that the former governor of Virginia, who very explicitly set up meetings and organized events in exchange for bribes, did not commit a crime.

Right.

You had Percoco, the United States, last year, which we haven't covered yet, where the court let one of Andrew Cuomo's aides off the hook for taking a $35,000 gift from a real estate developer in connection with government contracts.

And now you have this case.

We've mentioned that the mission of this court seems to involve narrowing the definition of corruption to the point of meaninglessness, right?

Needs to be a giant bag of money, and you need to put it down in front of them and say, I want to give you this, and in exchange, I want you to do an official act.

And then they have to shake hands.

Otherwise, it doesn't count.

And that's absurd in itself.

And then you have another layer of absurdity here because we all know that Clarence Thomas is engaging in this sort of casual corruption, as are other justices, although to notably lesser degrees.

And I'm just not sure that there's anything too insightful I can say about that.

It's just like it's exactly as transparently venal as it appears to be.

Right.

Right.

I think the big takeaway lesson from both this court's cases and the actions of the justices is that this is what the court and the conservatives in particular think that the government should look like.

Yes.

They believe that the spoils rightfully accrue to the powerful.

They believe in a government that is fundamentally transactional where money can and should be exchanged for influence.

In a lot of ways, This is what the right-wing vision of democracy is.

Not mass participation in a politics where everyone is on equal footing, but the freedom of each person to leverage their money and power as they see fit within our governance, right?

Yeah, absolutely.

They've already said that money is speech, right?

And that using your money in politics in certain ways is protected by free speech protections, right?

And so this completely flows.

That's completely in line with this reasoning that somebody who has money, they're doing free speech, they should be free to use their money in politics.

And actually, that's what the Constitution protects, right?

Obviously, this case isn't about the Constitution.

It's not about the First Amendment and free speech, but it comes in a long line of jurisprudence that's on this issue that clearly shows that their vision of democracy includes that people with money should be able to use it to influence government.

And I keep thinking about, you know, sometimes you'll see like, it's not quite a meme format, but you'll see like a graphic or a quote from somebody who like grew up under an authoritarian regime or something like that, where they're warning against the idea of sort of like creeping fascism, that you don't just wake up one day and realize that the government has crossed a line and now this is a fascist country, right?

Or now you have an authoritarian government.

That actually it happens over the course of many years, usually.

It's quite slow and it happens with the breakdown of government institutions, especially government transparency, government accountability, right?

It happens in the breakdown, little by little, decisions and policy changes and courts overturning certain laws that actually hold government officials accountable and regulate the ethics of government, regulate good governance, right?

Or at least accountability for acting in unethical ways as a government official.

That actually, that's the process by which a country, a society is slowly turned towards fascism or allows the government to turn fascist.

And so I think this case is a good example.

It's so absurd.

We're laughing a lot.

Ha ha ha.

We have to laugh in order not to cry, et cetera, et cetera.

That's what we do on this podcast.

This case is a really good example because it's in line with a lot of other cases that Peter just laid out, right?

That really exemplify, demonstrate this sort of slow turn where the Overton window is shifting, where what is considered quote unquote normal and legal shifts slowly until all of the sudden, you're getting Supreme Court justices bought off for their opinions.

You're getting behind closed-door deals that government officials can make, and then there's no accountability for it.

And that's actually laying the foundation for fascism.

And it's not going to be that you wake up one day and it'll be clear all of a sudden we're fascist.

This is a fascist Supreme Court opinion.

Yeah.

Yeah.

And I think one thing that the tripartite structure of our government affords us is that you might not be able to wake up and know that the entirety of the United States has turned into a fascist country.

Yeah, exactly.

It's not a strict binary, but you are afforded the ability to wake up and understand that the Supreme Court has turned fascist.

That day has passed.

This institution is quite literally fascist, in my view.

It is predicated on the reascendance of a

fictionalized national history predicated upon a powerful despotic figure in the executive branch,

as long as that figure belongs to the Republican Party.

You know, you can keep going down the line, but this is a fascist institution.

It's a fascist decision, and it's one of several from this term.

Yeah, it's worth mentioning also, because this is a statutory interpretation case, as I'd like to mention whenever we do these, that so many of the problems of the court are downstream of our dysfunctional Congress.

Congress could and should fix this quite easily.

Like this shouldn't be a controversial thing to just clarify that the law does in fact cover gratuities.

And while they're at it, you know, if the Dems had any balls, they would clarify that the federal law covers Supreme Court justices.

and applies to all the behavior that Clarence Thomas and Alito and all of them have been engaging in, and saying that from now on, accepting gratuities like that

gets you sent to prison.

Like, that's something Congress could do.

And I don't want to hear it about fucking Joe Manchin.

I don't want to hear it about the filibuster.

Like, if you're worth a damn at all as a fucking political party, this is something you should be able to pass.

And self-imposed constraints from your own members being resistant or because of rules that you can change.

I'm not interested in that.

They don't have the majority in the House right now.

So Democrats can't do it on their own.

But with the governing trifecta, there's no excuse not to fix this law and bring something heavy to the Supreme Court while they're at it.

Like, you have to be real.

You have to be a serious political party.

I recently read something good from They Thought They Were Free, The Germans 1933 to 1945,

which has has a lot of testimony with just ordinary Germans during World War II.

Yeah.

So I'm going to read it.

But the one great shocking occasion when tens or hundreds of thousands will join you never comes.

That's the difficulty.

If the last and worst act of the whole regime had come immediately after the first and smallest thousands, yes, millions would have been sufficiently shocked.

If, let us say, the gassing of the Jews in 43 had come immediately after the German firm stickers on the windows of non-Jewish shops in 1933.

But of course, this isn't the way it happens.

In between come all the hundreds of little steps, some of them imperceptible, each of them preparing you to not be shocked by the next.

Step C is not so much worse than step B.

And if you did not make a stand at step B, why should you stop at step C?

And so on to step D.

And one day, too late, your principles, if you were ever sensible of them, all rush in upon you.

The burden of self-deception has grown too heavy, and some minor incident, in my case, my little boy, hardly more than a baby, saying, quote, Jewish swine, collapses it all at once.

And you see that everything, everything has changed and changed completely under your nose.

Kamala, save us.

Kamala, please.

I'm getting that going.

Buzz if you're in the K-hot, baby.

I'm out here buzzing every day.

All right, next week we're taking a week off so we can do some live shows.

But then we're coming back.

Yeah.

Probably with another case.

Who knows what it'll be?

What's it going to be?

Yeah, we'll decide later.

We're going to decide later.

Follow us on social media at 54pod.

Subscribe to our Patreon, patreon.com slash 54pod, all spelled out for access to premium episodes, special events, early access to live show tickets, shit like that.

We'll see you next week.

Bye, everybody.

Bye.

Five to four is presented by Prologue Projects.

Rachel Ward is our producer.

Leon Napok and Andrew Parsons provide editorial support.

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What's the creeping Sharia law?

I actually meant creeping fascism, but it's just funny to say creeping Sharia.

Sharia on the mind.