Why Skilling (the Sleaze-bag) Had to Win

Last week, the US Supreme Court announced its decision in Skilling v. United States, an appeal by Enron conman Andrew Skilling of his conviction for fraud. Skilling won, in the most important aspect of his appeal. As both New York Times and Washington Post editorials noted, this was a victory not so much for the sleaze-bags like Skilling and New York senator Joe Bruno who have been convicted under the law, as for the rule of law itself. Ruth Bader Ginsburg’s majority opinion found that the statute in question was improperly applied to Skilling’s case, and that if Congress or the states wanted to convict people of being sleaze-bags, they were going to have to define the term more carefully. The majority did not strike the law in its entirety, however, over the objections of Antonin Scalia, his sidekick Clarence Thomas and Andrew Kennedy.

Although the immediate result would have been the same, this is an instance in which I tend to agree with Scalia more than Ginsburg. Scalia is at his best when he cleaves closely to his long-held principles of “textualism,” which insist that courts read all words – in the constitution and in statutes – as narrowly as makes sense to read them rather than finding new possible meanings in order to fit new circumstances. This is a seriously laudable principle, in part because, if courts followed it, legislatures would have to pay much closer attention to their job. As Scalia frequently notes, when courts let the legislatures off the hook by imbuing their words with useful meanings post hoc, we get bad behavior from both judges and legislators. Judges read the law to mean whatever they want to say (as Scalia did in Bush v. Gore) rather than what it actually says, and lawmakers slap together statutes without ever reading them carefully, if at all.

According to the summary of the majority opinion, the “honest services doctrine” under which Skilling was convicted originated in a 1940’s mail fraud law which prohibited “any scheme to defraud” someone else. Under this theory, an employee who took bribes from a third party could be convicted for defrauding his employer or a public servant who took bribes in the course of his duties. As these convictions increased in number, however, courts began to broaden the interpretation of the law, to the point that no one really knew what it meant. One could be “defrauded” of the right to proper representation, to diligent effort, to loyalty. This was not the sort of thing that “fraud” usually meant.

To remedy this problem, in 1987 the US Supreme Court ruled in McNally v. US that under the law as written, one could only be defrauded of property rights. In other words, if no one lost actual stuff, the government could not convict. Standing would be much more easily understood. “If Congress desires to go further,” the Court stated, “it must speak more clearly.”

So, in 1988, Congress wrote §1346 of the penal code, which stated that “For the purposes of th[e] chapter [of the U. S. Code that prohibits, inter alia, mail fraud, §1341, and wire fraud, §1343], the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.” But this attempted remedy was no help. Just as Scalia has warned for years, the thing was written so vaguely and sloppily that it only offered support for a broad concept developed by the courts rather than defining the rule more carefully. What would “honest services” mean, and where does one get the “intangible right” to have them?
The majority opinion here says that the answer can be found in the legislative history. Congress intended, says Ginsburg, to outlaw “kickbacks and bribes” that then lead to sleaze-bag behavior. Where there is no kickback or bribe from a third part, says the Court, there is no violation of the law.

But why should the Court have to look at legislative history to find such an answer? If the legislature meant to limit the law to these instances, it should have said so. Because Congress was lazy or sloppy, they wrote a law nobody could figure out, and it should have been chucked and re-written. What the Court did here was write the law for Congress. That’s not what courts are for. And considering how little I like most of the current members, and how untouchable they are under the constitution, I don’t want them to have that power.