In Skilling v. United States (08-1394), the Court affirmed in part, reversed in part, and remanded in a main opinion by Justice Ginsburg. The vote is unanimous on the “honest services” question in this case, but three Justices would have ruled that the honest services statute is unconstitutional: Scalia, Thomas, and Kennedy. There are an array of other concurrences in the case, including a partial dissent by Justice Sotomayor, joined by Justices Breyer and Stevens.SCOTUSblog falls prey to the statue-for-statute typo. I picture a ghostly statuesque demon that swipes at the hands of anyone trying to write statute. We all know how to write statute, and lawyers and lawprofs have far more occasions to type the word statute, but something drags us to statue. Perhaps it isn't anything supernatural, but a desire to escape from the legal structure we've imposed on our lives and to experience the freedom and beauty of art. No, no, not another statute! I would prefer a statue!
• Holding: (1) Pre-trial publicity and community prejudice did not prevent Skilling from having a fair trial. (2) the “honest services” statue covers only bribery and kickback schemes. Part of the opinion vacates the Fifth Circuit’s ruling on Skilling’s conspiracy conviction. In her dissent, Justice Sotomayor disagrees with the Court’s conclusion that Skilling had a fair trial before an impartial jury.
But of the subject of imposed confining structures: Will Jeffrey Skilling, the Fiend of that Terrible Corporation Known as ENRON, break free of the iron grip of federal prison? From the opinion (linked above):
Whether potential reversal on the conspiracy count touches any of Skilling’s other convictions is also an open question. All of his convictions, Skilling contends, hinged on the conspiracy count and, like dominoes, must fall if it falls. The District Court, deciding Skilling’s motion for bail pending appeal, found this argument dubious, but the Fifth Circuit had no occasion to rule on it. That court may do so on remand.Skilling was convicted 5 years ago, by the way. Isn't it disturbing that justice takes so long, even — especially? — for a very rich man?
I wonder what Obama and his cohort will make of this new opinion, which limits the ability of federal prosecutors to go after the nefarious men who run corporations.