Here are some of my thoughts from Skilling v. United States,decided today by the Supreme Court.

From Justice Ginsburg’s holding:

We consider in this opinion two questions arisingfrom the prosecution of Jeffrey Skilling, a longtime Enron executive, for crimes committed before the corporation’scollapse. First, did pretrial publicity and communityprejudice prevent Skilling from obtaining a fair trial? Second, did the jury improperly convict Skilling of conspiracy to commit “honest-services” wire fraud, 18 U. S. C.§§371, 1343, 1346?

Answering no to both questions, the Fifth Circuit affirmed Skilling’s convictions. We conclude, in common with the Court of Appeals, that Skilling’s fair-trial argument fails; Skilling, we hold, did not establish that a presumption of juror prejudice arose or that actual bias infected the jury that tried him. But we disagree with the Fifth Circuit’s honest-services ruling. In proscribingfraudulent deprivations of “the intangible right of honest services,” §1346, Congress intended at least to reachschemes to defraud involving bribes and kickbacks. Construing the honest-services statute to extend beyond that core meaning, we conclude, would encounter a vagueness shoal. We therefore hold that §1346 covers only bribery and kickback schemes. Because Skilling’s alleged misconduct entailed no bribe or kickback, it does not fall within §1346’s proscription.

Part I of the opinion, written by Justice Ginsburg, and joined by ROBERTS, C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, and ALITO, JJ., focused on pretrial publicity,.

Part II of the opinion (beginning on page 11), written by Justice Ginsburg, and joined by ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., focused on juror prejudice.

Part III, of the opinion, written by Justice Ginsburg, and joined by ROB-ERTS, C. J., and STEVENS, BREYER, ALITO, and SOTOMAYOR, JJ found that the honest services fraud statute is constitutional.

Justice Scalia, joined by Justices Thomas and Kennedy did not agree with Part III, and concurred separately. Scalia would have found that the honest services fraud was void for vagueness, and unconstitutional.

Justice Sotomayor, joined by Justices Stevens and Breyer, wrote a dissenting opinion, disagreeing with Parts I and II, though the troika joined Part III, upholding the constitutionality of the honest services fraud.

So how to score this? I see 9 votes for reversing Skilling’s conviction and 6 votes for upholding the constitutionality of honest services fraud.

The meat of the opinion focuses on the constitutionality of the honest services fraud. Skilling was convicted on a conspiracy theory of honest-services wire fraud. While the Court found that the statute was not unconstitutionally vague, Skilling’s conduct–conspiracy–did not fall within the statute’s compass. Only bribery and kickbacks were within the statute.

More analysis after the jump.

Justice Ginsburg discusses the history of honest-services fraud, and notes that when possible, the Court will avoid striking down a federal statute for vagueness:

It has long been our practice, however, before strikinga federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting construction. See, e.g., Hooper v. California, 155 U. S. 648, 657 (1895) (“The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” (emphasis added)). See also Boos v. Barry, 485 U. S. 312, 330–331 (1988); Schneider v. Smith, 390 U. S. 17, 26 (1968).41 We have accordingly instructed “the federal courts . . . to avoid constitutional difficulties by [adopting a limiting interpretation] if such a construction is fairly possible.” Boos, 485 U. S., at 331; see United States v. Harriss, 347 U. S. 612, 618 (1954) (“[I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not bestruck down as vague . . . . And if this general class ofoffenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a dutyto give the statute that construction.”).

Narrowly construing the statute, Justice Ginsburg finds that it reaches at least bribes and kickbacks.

instructed “the federal courts . . . to avoid constitutional difficulties by [adopting a limiting interpretation] if such a construction is fairly possible.” Boos, 485 U. S., at 331; see United States v. Harriss, 347 U. S. 612, 618 (1954) (“[I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not bestruck down as vague . . . . And if this general class ofoffenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a dutyto give the statute that construction.”). To preserve the statute without transgressing constitutional limitations, we now hold that §1346 criminalizes only the bribeand-kickback core of the pre-McNally case law.44

The Court also invokes the rule of lenity!

Further dispelling doubt on this point is the familiar principle that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Cleveland, 531 U. S., at 25 (quoting Rewis v. United States, 401 U. S. 808, 812 (1971)).

In a footnote, Justice Ginsburg addresses how the government could criminalize the nebulous ““undisclosed self-dealing by a public official or private employee,”

45If Congress were to take up the enterprise of criminalizing “undisclosed self-dealing by a public official or private employee,” Brief for United States 43, it would have to employ standards of sufficient definiteness and specificity to overcome due process concerns. The Government proposes a standard that prohibits the “taking of officialaction by the employee that furthers his own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty,” so long as the employee acts with a specificintent to deceive and the undisclosed conduct could influence the victim to change its behavior. Id., at 43–44. See also id., at 40–41. That formulation, however, leaves many questions unanswered. How direct or significant does the conflicting financial interest have to be? To what extent does the official action have to further that interest in order to amount to fraud? To whom should the disclosure be made and what information should it convey? These questions and others call for particular care in attempting to formulate an adequate criminal prohibition in this context.

Justice Scalia, joined by Justices Thomas and Kennedy, joined the Court’s opinion, except as to Part III. Scalia would have struck down the honest services fraud as void for vagueness. Scalia compares the Court’s construing of the honest-services fraud to only reach bribery and kickbacks to the development of common law federal crimes.

In my view, the specification in 18 U. S. C. §1346 (2006 ed., Supp. II) that “scheme or artifice to defraud” inthe mail-fraud and wire-fraud statutes, §§1341 and 1343(2006 ed.), includes “a scheme or artifice to deprive another of the intangible right of honest services,” is vague, and therefore violates the Due Process Clause of the Fifth Amendment. The Court strikes a pose of judicial humility in proclaiming that our task is “not to destroy the Act . . . but to construe it,” ante, at 43 (internal quotation marks omitted). But in transforming the prohibition of “honestservices fraud” into a prohibition of “bribery and kickbacks” it is wielding a power we long ago abjured: the power to define new federal crimes. See United States v. Hudson, 7 Cranch 32, 34 (1812).

In his lengthy criticism of the case law supporting honest-services fraud, Nino breaks out a little French. Citing international law: bad. Using international languages: continental.

The indefiniteness of the fiduciary duty is not all. Manycourts held that some je-ne-sais-quoi beyond a merebreach of fiduciary duty was needed to establish honestservices fraud.

Scalia lances the holding here, and criticizes the bribery/kickback core the Court finds underlying the statute.

The Court is aware of all this. It knows that adopting by reference “the pre-McNally honest-services doctrine,” ante, at 43, is adopting by reference nothing more precise than the referring term itself (“the intangible right ofhonest services”). Hence the deus ex machina: “[W]e parethat body of precedent down to its core,” ante, at 39. Since the honest-services doctrine “had its genesis” in briberyprosecutions, and since several cases and counsel forSkilling referred to bribery and kickback schemes as “core” or “paradigm” or “typical” examples, or “[t]he most obvious form,” of honest-services fraud, ante, at 43–44 (internalquotation marks omitted), and since two cases and counsel for the Government say that they formed the “vast majority,” or “most” or at least “[t]he bulk” of honest-services cases, ante, at 43–44 (internal quotation marks omitted),THEREFORE it must be the case that they are all Congress meant by its reference to the honest-services doctrine.

As my colleague Mike Sacks observed, Nino wrote in all caps for the therefore. Sharp.

Scalia notes that even if the bribery/kickback core made sense, the statute is still too vague–who does it apply to?

Even if that conclusion followed from its premises, it would not suffice to eliminate the vagueness of the statute. It would solve (perhaps) the indeterminacy of what acts constitute a breach of the “honest services” obligation under the pre-McNally law. But it would not solve the most fundamental indeterminacy: the character of the“fiduciary capacity” to which the bribery and kickback restriction applies. Does it apply only to public officials?Or in addition to private individuals who contract with thepublic? Or to everyone, including the corporate officer here? The pre-McNally case law does not provide an answer. Thus, even with the bribery and kickback limitation the statute does not answer the question “What is thecriterion of guilt?”

Scalia goes on to criticize the Court’s faux-modesty:

To say that bribery andkickbacks represented “the core” of the doctrine, or thatmost cases applying the doctrine involved those offenses, is not to say that they are the doctrine. All it proves isthat the multifarious versions of the doctrine overlap with regard to those offenses. But the doctrine itself is much more. Among all the pre-McNally smörgåsbord-offeringsof varieties of honest-services fraud, not one is limited to bribery and kickbacks. That is a dish the Court has cooked up all on its own.

…

Arriving at that conclusion requires not interpretationbut invention. The Court replaces a vague criminal standard that Congress adopted with a more narrow one (included within the vague one) that can pass constitutional muster. I know of no precedent for such “paring down,”3 and it seems to me clearly beyond judicial power. This is not, as the Court claims, ante, at 41, simply a matter of adopting a “limiting construction” in the face of potential unconstitutionality.

Scalia proceeds to talk about the avoidance canon, a topic that has been amply discussed this term.

The canon of constitutional avoidance, on which the Court so heavily relies, see ante, at 41–42, states that “when the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations,by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that constructionwhich will save the statute from constitutional infirmity.” United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 407 (1909); see also United States v. Rumely, 345 U. S. 41, 45 (1953) (describing the canon as decisive “in the choice of fair alternatives”). Here there is no choice to be made between two “fair alternatives.” Until today, no one has thought (and there is no basis for thinking) that the honest-services statute prohibited only bribery and kickbacks.

In prior vagueness cases, we have resisted the temptation to make all things right with the stroke of our pen. See, e.g., Smith v. Goguen, 415 U. S. 566, 575 (1974).I would show the same restraint today, and reverse Skilling’s conviction on the basis that §1346 provides no “ascertainable standard” for the conduct it condemns, L. Cohen, 255 U. S., at 89. Instead, the Court today adds to our functions the prescription of criminal law.

Scalia also seems to have some questions about Marbury.

I continue to doubt whether “striking down” a statute is ever an appropriate exercise of our Article III power. See Chicago v. Morales, 527 U. S. 41, 77 (1999) (SCALIA, J., dissenting).