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Late Night: Not Merely an Activist Court, But a Proactive One

This morning, Josh Marshall spent some time navel-gazing about the Supreme Court decision announced yesterday that questioned the conviction of Enron fraudster Jeffrey Skilling — and, more broadly, challenged the “intangible right to honest services” on which the Skilling verdict was partly based:

To put it very generally, the “honest services” theory allowed a much broader theory of criminal activity than those used in cases of bribery itself. Basically, if I’m working for the people of Kentucky and I’m in effect in the pay of a private interest, I’m depriving the people of the state of “honest services” even if the prosecutor cannot prove, narrowly speaking, that I took a bribe. In short, it makes it much easier for prosecutors to make their case.

The Court unanimously decided to scale back “honest services” and the conservative wing (Scalia, Thomas and Kennedy but not Alito) wanted to get rid of it altogether.

If you’ve followed TPMMuckraker over the last five years, I’d venture to say that the majority, probably the great majority of the public corruption cases we’ve covered relied in whole or in part on “honest services. So if it’s been dramatically curtailed that could undermine a lot of convictions.

I have to assume that those dissenting opinions, in particular, weren’t motivated by jurisprudence (Scalia? Thomas?! Obviously not…) or even ideology so much as an instinct for self-preservation. Strict constitutionalists or not, you gotta think that for the guys who overturned the popular vote in Bush v. Gore — and have since followed that up by determining that the 1st Amendment right to free speech should be weighted by how much money you have in Citizens United, among other atrocities — the last thing in the world they’d want would be an established legal right of the public to “honest services.”

A legal “right” like that could get certain Supreme Court justices in trouble if folks started taking it seriously.

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Swopa has been sharing prescient, if somewhat anal-retentive, analysis and garden-variety mockery with Internet readers since 1995 or so, when he began debunking the fantasies of Clinton-scandal aficionados on Usenet. He is currently esconced as the primary poster at Needlenose (