You’ll hear much ado about the divided Texas abortion case. Skip it. The one opinion worth a full read is an 8-0 sleeper: McDonnell v United States, No. 15-474.
Statistically, very few people actually read U.S. Supreme Court opinions. We can all recite our favorite zinger, like Justice Potter Stewart’s “I know it when I see it” line. But we usually get our aphorisms from CliffNotes, headlines and coffee mugs.
A Wall Street Journal editorial headline immediately proclaimed McDonnell the “Decision of the Year.” It runs a mere 28 pages, was authored by Chief Justice John Roberts, contains no dissents, upends a prevalent practice by zealous federal prosecutors, and has an unreported, furtive harbinger at the end. You can download the opinion for free at www. supremecourt. gov/opinions/15pdf/15-474_ljgm.pdf.
The opinion reads like a legal thriller. A federal criminal indictment (pg 1). An ethically challenged Governor with more debt than sense (pg 8). A conniving CEO of a nutrient supplement company (pgs 1-8). A private plane and lunch in New York (pg 3). A $20,000 designer clothing spree (pg 4). A borrowed Ferrari (pg 5). Tee time on the golf course (pg 8). A cash-strapped politician’s wife (pgs 3,4,5,6). Beguiling loans (pgs 6,8). A Rolex Christmas gift (pg 5). An expensive wedding (pgs 4,8). Immunity for the really bad guy (pg 10). Botched jury instructions (pgs 25-27). A jury verdict for the gov’t (pg 2). Jail time for the Gov and his wife (pg 12). And a huge criminal defense victory on the Hail Mary appeal to SCOTUS (pg 27). The hero-less saga even takes place in John Grisham’s adopted state of Virginia (pg 2).
This armchair-lawyer blockbuster picks up with the appeal of the Virginia Governor’s conviction on charges of “honest services fraud” – the federal stratagem used successfully to prosecute Dickie Scruggs, Jack Abramoff, Alabama Gov. Don Siegelman, and Enron CEO Jeffrey Skilling. Prior to 1988, the feds had struggled to prove critical elements of the federal bribery statute, but an accommodating Congress unleveled the playing field by adding a 28-word sentence that criminalized acts “depriv[ing] another of the intangible right of honest services.” In a scathing 2009 dissent, the late Justice Scalia concluded the “staggeringly broad swath” of post-amendment prosecutions by the feds would lead to the logical conclusion that the amendment “renders criminal … a mayor’s attempt to use the prestige of his office to obtain a restaurant table without a reservation.”
But back to McDonnell. Once past the entertaining miasma, the novella lags while the Court tediously ponders what constitutes an “official act.” The auspicious Chief Author engages in statutory interpretation and even employs the “familiar interpretive canon” noscitur a sociis (a word is known by the company it keeps) to resolve the linguistic mystery.
And then the dramatic finale. SCOTUS emasculates the federal prosecutors, schools the U.S. District Court, reverses the U.S. Court of Appeals for the Fourth Circuit, and vacates the governor’s convictions. In a time-honored tradition, the Court does so by citing prior opinions as if they aren’t really creating new law and perhaps us minions should have anticipated the stunning unanimous denouncement.
Like any good read, the tawdry and distasteful tale (pg 28, Chief Justice John Roberts’ words) leaves something for the imagination. Who paid for Maureen’s inauguration dress? Where are those Virginia beach rental properties? Did the Governor’s aide who sent the “polite blow-off” email get fired? Does Anatabloc even work? Does Gov. McDonnell still take one a day? What prompted the two-time Harvard grad (Chief Justice Roberts) to end a sentence with a preposition? Did the feds really think McDonnell deserved ten years in the pen?
Speaking of the feds, one has to wonder when the DOJ will revise, update or take down their 955-word bumptious press release posted on the very day of the 2014 conviction. www.justice.gov/opa/pr/former-virginia-governor-and-former-first-lady-convicted-public-corruption-charges. Awkward!
The law & order crowd may groan at the perceived injustice of the contemptible governor dodging jail time. At this juncture, one needs to appreciate the Supreme Mindset. This Court focuses on law and process, not individuals. Consider the Roe v Wade abortion ruling. “Jane Roe” got pregnant in 1969. The Supreme Court decided the case in 1973 – hardly in time to address Jane’s previously pressing issue. In fact, Baby Roe was adopted long before the case was decided. Think of it like the forest versus the trees.
In McDonnell, Chief Justice John Roberts explained it as follows:
There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute.
Now for the harbinger. On page 24, the Court detects “significant federalism concerns” with the prosecution. The Supremes even cite a prior case dealing with the government’s “unprecedented incursion into the criminal jurisdiction of the States.” Meaningfully, they expressly pay homage to the sovereignty of the States. If you listen closely, you can hear the judicial branch admonishing its two sister branches concerning the proper relationship of the States and the federal government. There is no mention of the 10th Amendment, though it seems to be lurking in the penumbra.
Some might argue this federalism snippet is mere dictum. Even if so, it is 8-0 dictum. Scalia would be pleased.
Now, if only John Grisham hadn’t already written a novel called The Appeal.
» Ben Williams the author, is a Jackson attorney. Email him at MBWJ@aol.com. Ford Williams, the artist, is a 2016 graduate of Jackson Academy. Ford will attend the Savannah College of Art & Design in the fall of 2016.