[I]t is obvious that mere prohibition of bribery and kickbacks was not the intent of the statute. To say that bribery and kickbacks represented "the core" of the doctrine, or that most cases applying the doctrine involved those offenses, is not to say that they are the doctrine. All it proves is that the multifarious versions of the doctrine overlap with regard to those offenses. But the doctrine itself is much more. Among all the pre-McNally smörgåsbord-offerings of varieties of honest-services fraud, not one is limited to bribery and kickbacks. That is a dish the Court has cooked up all on its own.
The Court desperately wanted to save honest services. It did, but only by concocting congressional intent. The only intent that went into the statute was that of spineless congressmen to be vague, and the Supremes have just abetted that by creating law where none had been. Now, we just have redundancy. If Congress had intended to make honest services fraud pertain to bribery and kickbacks, it wouldn't have already passed bribery and kickback statutes.
This morning's opinions and orders included a few important things to note:
- First, the Court denied hearing to Holy See v. Doe, determining whether the Vatican can be sued.
- Second, in Christian Legal Society v. Martinez, the Court held that when an academic institution has a policy that all student organizations must accept "all comers", religious organizations are not exempt. Basically, the Christian Legal Society cannot keep people from being voting or leading members of their Hastings College of Law chapter because those people won't sign a statement of faith. However, the determination was (a) limited to 'all comers' policies (which are exceedingly rare at universities) and (b) only applicable if the school has applied the "all comers" rule consistently across organizations (where there is evidence that it hasn't).
- Finally, in McDonald v. City of Chicago, Justice Alito wrote for the majority that the Second Amendment is incorporated into the Fourteenth. However, interestingly, a majority did not agree that this was through the Due Process Clause of the Fourteenth Amendment. Only Roberts, Scalia, Kennedy, and Alito supported that. Clarence Thomas (who concurred in judgement) thinks that it is incorporated through the (basically defunct, since the Slaughterhouse cases) privileges or immunities clause. On that, I agree with Justice Thomas. The other incorporated rights should've been done that way too. It's just a shame that we're saying that on the other end of 125 years of bad jurisprudence.