Tag: Supreme Court

The Supreme Court’s Decision in Skilling

This morning the Supreme Court issued its long awaited decision in the case of Jeffrey Skilling.  The most important aspect of the case concerned the so-called “honest services” statute.  That law has been an amorphous blob that federal prosecutors could suddenly invoke against almost anyone.  All nine justices acknowledged the law had problems, but only three–Scalia, Thomas, and Kennedy–said the law was unconstitutionally vague.  The other six justices bent over backwards to “save” the law from invalidation–they ruled that the law should be narrowly interpreted.  Here is, I think, the most telling passage from the majority’s ruling:

“As to arbitrary prosecutions, we perceive no significant risk that the honest services statute, as we intrepret it today, will be stretched out of shape.”

Instead of strict rules and limits on government power, the Court is content to offer leeway to the prosecutors–some risk of arbitrary prosecutions is acceptable you see. 

The burden ought to be placed on the government–legislators and prosecutors ought to be able to justify every single case.  Instead, this Court needs to be persuaded that a significant risk of abuse exists.  Here is a passage from a Supreme Court case from years ago that gets it right:

“A criminal statute cannot rest upon an uncertain foundation.  The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue.  Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another.”

The second issue in the case concerned Skilling’s right to an impartial jury trial.  And it came as no surprise that the Court embraced a prosecutor-friendly view of the Sixth Amendment.  Skilling argued that the climate in Houston following the collapse of Enron was so hostile that he should have been granted a change in venue.  He’s right about that.  The prosecution should be indifferent as to whether they present their incriminating evidence in Houston or another city.  Instead, the Court shifts the burden to the accused and sniffs, “sorry, you have not clearly proven to us that you were prejudiced by biased jurors.  If someone could prove beyond a reasonable doubt that they had a biased jury, well that would be another story.” 

Here’s a modest proposal: This  summer each justice should represent some persons accused of crimes. 

For additional background, go here.

The Unbearable Vagueness of “Honest Services Fraud”

Cato adjunct scholar Tim Sandefur, who authored an amicus brief in the case of Skilling v. U.S., writes on his home blog:

Today, the Supreme Court decided the case of Jeffrey Skilling, the CEO of Enron, who had been convicted of the crime of “honest services fraud.” The statute, however, is so vague, that nobody knows what the term “honest services fraud” actually means. Pacific Legal Foundation (joined by our friends at the Cato Institute) filed a brief in the case arguing that statutes that are so vague violate the constitutional guarantee of due process of law—and that the constitutional protection against vague laws should apply in the business realm the same as anywhere else. Vague laws are dangerous because you cannot know what they prohibit and cannot therefore avoid breaking the law. It is unfair and unconstitutional to hold vague statutes over their head in such a way.

Unfortunately, the Court has in the past been reluctant to apply it outside the regular criminal context, on the theory that businesses are wealthier and can afford expert legal advice. But in a case like this, even the experts have no idea what the statute actually means. The federal circuit courts are in disarray as to what it means. And nobody should be convicted under a statute that is so broadly and vaguely worded, that even the prosecuting lawyer can’t tell you what that law actually means.

As they say, read the whole thing.

Problems Overturning Citizens United

Congress has been trying to overturn the Citizens United decision for the past four months. (Citizens United invalidated bans on speech by groups taking a corporate form). Their effort — the DISCLOSE Act — now seems bogged down in the House of Representatives. The National Rifle Association argues that they should not have to disclose their small donors. The labor unions also have complaints:

Amaya Tune, a spokeswoman for the AFL-CIO, told Bloomberg this week that “the final bill should treat corporations different than democratic organizations such as unions. We believe the legislation should counter the excessive and disproportionate influence by big business and guarantee effective disclosure of who is paying for what.”

Here’s the problem: The Supreme Court has ruled that Congress cannot regulate campaign finance to achieve equality of influence.  Ms. Tune is calling for changes in DISCLOSE to “counter the excessive and disproportionate influence by big business.” If Congress enacts those changes, how can the law be defended against the charge that Congress is seeking to legislate a greater equality of influence? Won’t the parts of the law demanded by the unions be unconstitutional?

FLASH: Liberal White House Nominates Liberal Judge!

From the first round of Clinton Library documents regarding Elena Kagan’s White House service, we can now all be shocked – shocked! – that President Obama’s Supreme Court nominee is a liberal.  It’s a mystery why the punditocracy thought someone who despaired at Ronald Reagan’s election, staffed the Michael Dukakis campaign, clerked for Thurgood Marshall, and advised Bill Clinton would be anything else.  But this is what passes for news in Washington these days.

We already knew that the solicitor general was a genial but cautious careerist, rarely expressing her own opinions but forever strategizing over the next rung on the ladder that would take her to her high school dream of sitting on the Supreme Court.  And we knew that she was a moderate legal academic – meaning she sits comfortably to the left of the country as a whole.  Well, now we know that Kagan is a technocrat who is for abortion rights, affirmative action, and campaign finance regulations, but against guns.

Some conservatives may see this as an “a-ha” moment, and rabid progressives may be breathing a sigh of relief.  But really these so-called revelations are not going to change the story, either in terms of the final confirmation vote or in the court of public opinion.

What the media should be asking, and what the American people deserve to know, is how Kagan views the Constitution – especially what limits it places on an out-of-control federal government.  In a prophetic 1995 book review, the nominee expressed frustration at the “vapid and hollow charade” that the confirmation process had become and demanded that both senators and judicial nominees engage in more substantive discussions.  Let’s see if the Kagan hearings meet that Kagan standard.

School Vouchers vs. Tax Credits

NRO editor Robert VerBruggen has weighed in a couple of times this week on the relative merits of school vouchers and education tax credits, raising interesting and important issues.

In response to my earlier post today about an education tax credit case now before the U.S. Supreme Court, VerBruggen writes:

If the Supreme Court buys this logic — which I suppose is sound on its face — it could lead to some very interesting programs. Any time it’s illegal for a government to fund something directly, it could simply make a dollar-for-dollar “tax credit” program for it, allowing sympathetic taxpayers to technically “donate” — but actually just redirect the taxes they’d otherwise have to pay — to the cause.

This is actually an argument presented by critics of the program in their brief asking the Supreme Court not to hear the appeal that it… just decided to hear. The fact that this argument is fallacious is no doubt one reason that the Supreme Court decided to reject critics’ request. Here’s where it goes wrong:

Under a constitutional tax credit program such as Arizona’s, the state has no power to pressure/encourage taxpayers to do anything that the state could not do directly. Taxpayers can choose to give no money to religious charities, or to give all their money to them. The state is unable to affect their decisions in any way.

As Ilya Shapiro and I pointed out in Cato’s amicus brief in this case, this is identical to the law pertaining to federal charitable tax deductions. Religious charities get more tax deductible donations than any other kind of entity, and the Supreme Court has repeatedly upheld their constitutionality because the decisions regarding such donations are left entirely to the unfettered choices of private citizens.

While it would be unconstitutional for a tax credit program to only allow donations to religious charities, it is perfectly consistent with the U.S. Constitution and Supreme Court precedent for a tax credit program to be religiously neutral, leaving the donating decisions to private citizens.

But there’s much more to it than this. Credits are not just constitutional, they offer an important advantage over vouchers. Under voucher programs, all taxpayers must support every kind of schooling, which can be a source of social conflict in a diverse society. [Think liberals being forced to fund religious-conservative-capitalist schooling; or conservatives being forced to fund schools supporting homosexuality as natural and without any inherent moral implications]. While this doesn’t violate the U.S. constitution (see Zelman v. Simmons Harris), it’s still a less-than-ideal outcome, as was observed in all three dissents in the Zelman case.

Tax credits, as I explained in the last section of our amicus brief (p. 21), avoid this source of social conflict. Not just families but taxpayers enjoy the benefits of free choice and voluntary association. Tax credits are thus a way to ensure universal access to a free educational marketplace without putting citizens into conflict with one another on matters of conscience. For this and many other reasons, they are the best realistic policy for advancing educational freedom yet devised.

Supreme Court Will Hear Appeal of School Choice Case

The SCOTUS Blog reports this morning that the United States Supreme Court has agreed to hear an appeal of the Ninth Circuit’s ruling in the Arizona k-12 scholarship tax credit case. This is great news, and paves the way for the Court to ultimately overturn the 9th Circuit’s credulity-straining legal misadventure.

For the details, see the Cato brief in this case, which was joined by the American Federation for Children and Foundation for Educational Choice.

Law Professor Confesses ‘I’m a Criminal’

Law Professor Michelle Alexander:

Lately, I’ve been telling people that I’m a criminal. This shocks most people, since I don’t “look like” one. I’m a fairly clean-cut, light-skinned black woman with fancy degrees from Vanderbilt University and Stanford Law School. I’m a law professor and I once clerked for a U.S. Supreme Court Justice – not the sort of thing you’d expect a criminal to do.

What’d you get convicted of? people ask. Nothing, I say. Well, then why do you say you’re a criminal? Because I am a criminal, I say, just like you.

Read the whole thing. (H/T Sentencing Law and Policy).  Judge Alex Kozinski and Misha Tseytlin make a similar point in an essay in my book entitled, “You’re (Probably) a Federal Criminal.”

More here and here.