Bench Memos

NRO’s home for judicial news and analysis.

Skilling v. United States


Given all the wild and highly selective claims that the conservative justices on the Supreme Court are pro-corporate, I’d like to highlight three facts about the Supreme Court’s ruling today in Skilling v. United States, which held that Enron executive Jeffrey Skilling could not be convicted of violating the so-called “honest services” statute:

1.  Justice Ginsburg authored the opinion of the Court, and all the other justices agreed that Skilling could not be convicted for honest-services fraud.

2.  Skilling was convicted on a total of 19 counts and was sentenced to 292 months’ imprisonment and $45 million in restitution.  Honest-services fraud was just a part of a single conspiracy count.  It’s far from clear that the Court’s ruling will actually benefit Skilling, as the Court leaves to proceedings on remand whether the error was harmless and whether it affected any of the other counts on which he was convicted.  (See slip op. at 50-51.)

3.  There were, however, three justices who would have vacated all of Skilling’s convictions on the ground that he didn’t receive a fair trial before an impartial jury.  But these justices weren’t, say, Roberts, Scalia, and Alito.  They were Stevens, Sotomayor, and Breyer.

I haven’t read Sotomayor’s dissent on the fair-trial issue (which Stevens and Breyer joined) and offer no opinion on its merits.  I’ll simply observe that if the three dissenters had been conservatives, the Left would be trotting out the dissent as evidence of their pro-corporate bias.


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