Strange bedfellows: Skilling v. United States

Unfortunately, instead of launching into a relentless assault of the statute, the court spent most of its time addressing the partiality of the jury. According to Cato Institute Senior Fellow Ilya Shapiro, “Justice Breyer read extensively from the trial record to express his concern about the inadequate measures the Houston court had taken to properly remove biased jurors.” The Court touched upon the Honest Services Fraud statute, but far more important were comparisons to the jury bias in the trial of Oklahoma City bomber, Timothy McVeigh, and whether it was possible for an entire city (in this case, 4.5 million people) to be biased.

This shift in emphasis reflects a growing trend of the Roberts court to sidestep main constitutional issues. But not all is lost, coupled with the Black and Weyrauch cases, the Court has dedicated significant time to the statute—enough to warrant its unconstitutionality (as it should).

Stephen Richer is the Director of Outreach at a Washington, D.C.-based legal think tank.