Where is the beef….

Jurors, Attempts, and Blagojevich

The Wall Street Journal’s article suggests problems with the prosecutor’s case:
But even a host of character flaws may not persuade the jury that Mr. Blagojevich—who faces 24 corruption counts—committed any crime. Legal experts say the government’s case is strong but cite a big caveat: Jurors like completed acts, and most of the plans Mr. Blagojevich allegedly hatched weren’t carried out.
The U.S. Senate seat he is accused of auctioning wasn’t sold. The Chicago newspaper Mr. Blagojevich was said to have strong-armed didn’t fire anyone. The president of the Children’s Memorial Hospital didn’t give Mr Blagojevich the $50,000 campaign contribution he allegedly demanded.
The jurors will be instructed that in the case of conspiracy, intending to commit a crime is enough, said Ronald S. Safer, a former federal prosecutor turned white-collar defense attorney. And they will be told that prosecutors acted when they did to stop a crime wave before it happened.
But Mr. Safer acknowledged it is a lot easier to convict somebody of doing something rather than intending to do something.

Domestic Violence and the System….

Bailey on Domestic Violence and the Criminal Justice System

Kimberly Bailey (Chicago-Kent College of Law) has posted Lost in Translation: Domestic Violence, ‘The Personal is Political’, and the Criminal Justice System (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
Current criminal justice domestic violence policies have been severely criticized by some feminist scholars as undermining victim autonomy. This criticism is puzzling given the fact that these policies were drafted in response to the activism of feminists involved in the women’s liberation movement and that autonomy, or the agency of women, was a key goal of this movement. This apparent paradox can be explained, however, by the fact that activists involved in the early battered women’s movement and actors in the current criminal justice regime speak in two different “languages”. Thus, complete victim autonomy is a concept that got lost in the translation of some of the goals of the early battered women’s movement into criminal justice policy. While this Article acknowledges that victim autonomy is not the chief goal of the criminal justice system, it still urges proponents of current criminal justice policies to take seriously the fact that a high number of victims currently do not want to engage with the criminal justice system. This number is an important metric in analyzing the effectiveness of domestic violence policies. First, it underscores the fact that improvements need to be made in victims’ interactions with the criminal justice system and in the criminal justice system’s response to those victims who do ask for help. Second, it highlights the fact that the criminal justice system is a limited tool in addressing what is a social, political, and economic problem. For this reason, a criminal justice solution should be part of broader domestic violence policies that address the complexity of this issue. The economic disparities that women experience as a class and the intersectionality of race, class, sexuality, and gender are important aspects of a broader approach to the domestic violence problem.

The overworked public servant…

Guest blogger Robert C. Boruchowitz: On Public Defenders and Excessive Caseloads

By Robert C. Boruchowitz, Director of the Defender Initiative and Professor from Practice at Seattle University:
The Florida Court of Appeals this past week reversed a trial court order that would have allowed a public defender to withdraw from a single case because he was not able to work on the case because of his excessive caseload. Florida v. Bowens, No. 3D09-3023 (July 7, 2010).
Even though the lawyer had more than 100 open felony cases and 900 per year, and had done no work on the case, the appellate court found that the defender had not demonstrated prejudice to the client “separate from that which arises out of an excessive caseload” and that by statute, such an argument was not permitted.
The court also found that neither the defender nor the trial court “has demonstrated that there was something substantial or material” that the defender attorney “has or will be compelled to refrain from doing.”
The court wrote that if it upheld the trial court’s order,
all that the PD11 [the Miami-Dade Public Defender] must do to show prejudice is swear that he or she has too many cases or that the workload is so excessive as to prevent him or her from working on the client’s case prior to the scheduled trial, and that he or she will be forced to file for continuance, thereby waiving the client’s speedy trial rights.
This case is disturbing on many levels. The court impliedly did not accept the ethical integrity of a defender lawyer or office that asserts an inability to provide competent representation. It ignored the factual findings of the trial court. And it refused to confront the constitutional implications of a statute that would force a defender to represent a client even when overwhelmed by cases. Instead it kicked the issue up to the state supreme court.
Florida has a statute that provides:
(1)(d) In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely on the inadequacy of funding or excess workload of the public defender.
Fla. Stat. Section 27.5303(1).
The appellate court certified to the state supreme court the question whether the statute violates an indigent client’s right to effective assistance of counsel and is a violation of the separation of powers as legislative interference with the judiciary’s inherent authority to provide counsel and the Supreme Court’s exclusive control over the ethical rules governing lawyer conflicts of interest.
The court should simply have found that the statute is unconstitutional because it requires lawyers to violate their ethical responsibility to provide competent representation and it seeks to prohibit judges from granting appropriate relief to lawyers who are overwhelmed by excessive caseload.
The appellate court also looked the other way in reviewing the trial court’s findings, and did not refer to them specifically. The judge had found that the number of cases assigned to the defender [Mr. Kolsky] “had a detrimental effect on his ability to competently and diligently represent and communicate with all his clients on an individual basis.” Florida v. Bowens, Case No. F090019364,Eleventh Judicial Circuit Court, October 23, 2009. It noted that this begins at arraignment where the defender holds brief conversations, usually not confidential, with clients he is meeting for the first time.
Mr. Kolsky had between 105 and 164 pending felony cases during 2009. In fiscal year 2008-2009, he had handled 736 felony cases in addition to 235 pleas at arraignment. Because of his caseload, he cannot meet with in-custody defendants until two months after arraignment, and then usually only for 30 minutes. The judge found that “The unrebutted testimony is that Kolsky has been able to do virtually nothing” on the case for which he was seeking an order of withdrawal. His only meeting with the client was at arraignment. He had not investigated the case or discussed discovery with his client. The client was facing a possible life sentence as an alleged habitual felony offender.
The trial court in analyzing the statute and a previous court of appeals decision wrote:
[T]here exists a cognizable difference between a withdrawal based solely on workload, and a withdrawal where an individualized showing is made that there is a substantial risk that a defendant’s constitutional rights may be prejudiced as a result of the workload. This distinction allows for judicial relief where prejudice to constitutional rights is adequately demonstrated.
The judge found that given that because of his workload Mr. Kolsky had not been able to investigate the case or file any motions and had had to request a continuance, giving up his client’s speedy trial rights, Mr. Kolsky had made the required individualized showing. The Court of Appeals ignored this finding.
Contrast the Florida court’s approach with that of a trial judge in Mohave County, who after finding that the public defender’s caseload prevented effective assistance of counsel, wrote that in the future, motions to withdraw need not be accompanied by hundreds of pages of exhibits or extensive legal citation, but that its policy would be “to grant motions and sign appropriate Orders based upon the briefest possible reference to this Order, not to exceed one sentence in length.” Arizona v. Lopez et al, Case No. Cr-2007-1544,Mohave County Superior Court, December 17, 2007
The Mohave County judge, having heard a three-hour evidentiary hearing with expert testimony and reviewed many documents, respected the public defender’s integrity in presenting motions to withdraw based on inability to provide effective representation. The Florida Court of Appeals, despite the record its trial court had made after evidentiary hearings and legal argument on three different days, rejected such an approach.
The caseload Mr. Kolsky carries is staggering and unacceptable. The trial judge recognized that and allowed him to withdraw in the single case presented to him. The Florida Court of Appeals had previously required that challenges to a defender’s competency to proceed must be resolved on a case-by-case basis, not by a challenge to the office’s ability as a whole.[1] When the office did present such an individual case challenge and the trial court granted the motion, the Court of Appeals ignored the reality and the denial of rights to Mr. Kolsky’s client.
The Florida Supreme Court should rapidly reverse the Court of Appeals and grant the Miami-Dade Public Defender’s office the relief to which it is entitled in order to represent its clients effectively.

Is truth the perfect defense?

A six-month suspension has been recommended for an Illinois lawyer who repeatedly criticized a judge, calling him, at one point, a “narcissistic, maniacal mental case” during a telephone conversation with the judge and opposing counsel in a family law matter.

Although Melvin Hoffman has practiced for more than 35 years without any prior discipline, he is not a good candidate for probation because he refuses to admit that he was in the wrong and take recommended steps to correct his behavior, says the Review Board of the Illinois Attorney Registration and Disciplinary Commission in a written opinion last week.

Hoffman contended that his constitutional right of free speech allowed him to express his opinion about the judge.

More guns…

Opinion striking down Chicago handgun ban

McDonald v. City of Chicago is here. Here is the syllabus:
Two years ago, in District of Columbia v. Heller, 554 U. S. ___, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home. Chicago (hereinafter City) and the village of Oak Park, a Chicago suburb, have laws effectively banning handgun possession by almost all private citizens. After Heller, petitioners filed this federal suit against the City, which was consolidated with two related actions, alleging that the City’s handgun ban has left them vulnerable to criminals. They sought a declaration that the ban and several related City ordinances violate the Second and Fourteenth Amendments. Rejecting petitioners’ argument that the ordinances are unconstitutional, the court noted that the Seventh Circuit previously had upheld the constitutionality of a handgun ban, that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States, and that the court had a duty to follow established Circuit precedent. The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U. S. 542, Presser v. Illinois, 116 U. S. 252, and Miller v. Texas, 153 U. S. 535— which were decided in the wake of this Court’s interpretation of the Fourteenth Amendment’s Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36.
Held: The judgment is reversed, and the case is remanded.
567 F. 3d 856, reversed and remanded.
JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, concluding that the Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense. Pp. 5–9, 11–19, 19–33.
(a) Petitioners base their case on two submissions. Primarily, they argue that the right to keep and bear arms is protected by the Privileges or Immunities Clause of the Fourteenth Amendment and that the Slaughter-House Cases’ narrow interpretation of the Clause should now be rejected. As a secondary argument, they contend that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment right. Chicago and Oak Park (municipal respondents) maintain that a right set out in the Bill of Rights applies to the States only when it is an indispensable attribute of any “ ‘civilized’ ” legal system. If it is possible to imagine a civilized country that does not recognize the right, municipal respondents assert, that right is not protected by due process. And since there are civilized countries that ban or strictly regulate the private possession of handguns, they maintain that due process does not preclude such measures. Pp. 4–5.
(b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War’s aftermath fundamentally altered the federal system. Four years after the adoption of the Fourteenth Amendment, this Court held in the Slaughter-House Cases, that the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws,” 16 Wall., at 79, and that the fundamental rights predating the creation of the Federal Government were not protected by the Clause, id., at 76. Under this narrow reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79–80. Subsequently, the Court held that the Second Amendment applies only to the Federal Government in Cruikshank, 92 U. S. 542, Presser, 116 U.S. 252, and Miller, 153 U. S. 535, the decisions on which the Seventh Circuit relied in this case. Pp. 5–9.
(c) Whether the Second Amendment right to keep and bear arms applies to the States is considered in light of the Court’s precedents applying the Bill of Rights’ protections to the States. Pp. 11–19.
(1) In the late 19th century, the Court began to hold that the Due Process Clause prohibits the States from infringing Bill of Rights protections. See, e.g., Hurtado v. California, 110 U. S. 516. Five features of the approach taken during the ensuing era are noted. First, the Court viewed the due process question as entirely separate from the question whether a right was a privilege or immunity of national citizenship. See Twining v. New Jersey, 211 U. S. 78, 99. Second, the Court explained that the only rights due process protected against state infringement were those “of such a nature that they are included in the conception of due process of law.” Ibid. Third, some cases during this era “can be seen as having asked . . . if a civilized system could be imagined that would not accord the particular protection” asserted therein. Duncan v. Louisiana, 391 U. S. 145, 149, n.14. Fourth, the Court did not hesitate to hold that a Bill of Rights guarantee failed to meet the test for Due Process Clause protection, finding, e.g., that freedom of speech and press qualified, Gitlow v. New York, 268 U. S. 652, 666; Near v. Minnesota ex rel. Olson, 283 U.S. 697, but the grand jury indictment requirement did not, Hurtado, supra. Finally, even when such a right was held to fall within the conception of due process, the protection or remedies afforded against state infringement sometimes differed from those provided against abridgment by the Federal Government. Pp. 11–13.
(2) Justice Black championed the alternative theory that §1 of the Fourteenth Amendment totally incorporated all of the Bill of Rights’ provisions, see, e.g., Adamson v. California, 332 U. S. 46, 71– 72 (Black, J., dissenting), but the Court never has embraced that theory. Pp. 13–15.
(3) The Court eventually moved in the direction advocated by Justice Black, by adopting a theory of selective incorporation by which the Due Process Clause incorporates particular rights contained in the first eight Amendments. See, e.g., Gideon v. Wainright, 372 U. S. 335, 341. These decisions abandoned three of the characteristics of the earlier period. The Court clarified that the governing standard is whether a particular Bill of Rights protection is fundamental to our Nation’s particular scheme of ordered liberty and system of justice. Duncan, supra, at 149, n. 14. The Court eventually held that almost all of the Bill of Rights’ guarantees met the requirements for protection under the Due Process Clause. The Court also held that Bill of Rights protections must “all . . . be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Malloy v. Hogan, 378 U. S. 1, 10. Under this approach, the Court overruled earlier decisions holding that particular Bill of Rights guarantees or remedies did not apply to the States. See, e.g., Gideon, supra, which overruled Betts v. Brady, 316 U. S. 455. Pp. 15–19.
(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19–33.
(1) The Court must decide whether that right is fundamental to the Nation’s scheme of ordered liberty, Duncan v. Louisiana, 391 U. S. 145, 149, or, as the Court has said in a related context, whether it is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721. Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the Second Amendment right. 554 U. S., at ___, ___. Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., the Court found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at ___, ___–___. It thus concluded that citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___. Heller also clarifies that this right is “deeply rooted in this Nation’s history and traditions,” Glucksberg, supra, at 721. Heller explored the right’s origins in English law and noted the esteem with which the right was regarded during the colonial era and at the time of the ratification of the Bill of Rights. This is powerful evidence that the right was regarded as fundamental in the sense relevant here. That understanding persisted in the years immediately following the Bill of Rights’ ratification and is confirmed by the state constitutions of that era, which protected the right to keep and bear arms. Pp. 19–22.
(2) A survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation’s system of ordered liberty. Pp. 22–33.
(i) By the 1850’s, the fear that the National Government would disarm the universal militia had largely faded, but the right to keep and bear arms was highly valued for self-defense. Abolitionist authors wrote in support of the right, and attempts to disarm “Free-Soilers” in “Bloody Kansas,” met with outrage that the constitutional right to keep and bear arms had been taken from the people. After the Civil War, the Southern States engaged in systematic efforts to disarm and injure African Americans, see Heller, supra, at ___. These injustices prompted the 39th Congress to pass the Freedmen’s Bureau Act of 1866 and the Civil Rights Act of 1866 to protect the right to keep and bear arms. Congress, however, ultimately deemed these legislative remedies insufficient, and approved the Fourteenth Amendment. Today, it is generally accepted that that Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389. In Congressional debates on the proposed Amendment, its legislative proponents in the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Evidence from the period immediately following the Amendment’s ratification confirms that that right was considered fundamental. Pp. 22–31.
(ii) Despite all this evidence, municipal respondents argue that Members of Congress overwhelmingly viewed §1 of the Fourteenth Amendment as purely an antidiscrimination rule. But while §1 does contain an antidiscrimination rule, i.e., the Equal Protection Clause, it can hardly be said that the section does no more than prohibit discrimination. If what municipal respondents mean is that the Second Amendment should be singled out for special—and specially unfavorable—treatment, the Court rejects the suggestion. The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner. Pp. 30–33.
JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, concluded, in Parts II–C, IV, and V, that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment right recognized in Heller. Pp. 10–11, 33–44.
(a) Petitioners argue that that the Second Amendment right is one of the “privileges or immunities of citizens of the United States.” There is no need to reconsider the Court’s interpretation of the Privileges or Immunities Clause in the Slaughter-House Cases because, for many decades, the Court has analyzed the question whether particular rights are protected against state infringement under the Fourteenth Amendment’s Due Process Clause. Pp. 10–11.
(b) Municipal respondents’ remaining arguments are rejected because they are at war with Heller’s central holding. In effect, they ask the Court to hold the right to keep and bear arms as subject to a different body of rules for incorporation than the other Bill of Rights guarantees. Pp. 33–40.
(c) The dissents’ objections are addressed and rejected. Pp. 41–44.
JUSTICE THOMAS agreed that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms that was recognized in District of Columbia v. Heller, 554 U. S. ___, fully applicable to the States. However, he asserted, there is a path to this conclusion that is more straightforward and more faithful to the Second Amendment’s text and history. The Court is correct in describing the Second Amendment right as “fundamental” to the American scheme of ordered liberty, Duncan v. Louisiana, 391 U. S. 145, 149, and “deeply rooted in this Nation’s history and traditions,” Washington v. Glucksberg, 521 U. S. 702, 721. But the Fourteenth Amendment’s Due Process Clause, which speaks only to “process,” cannot impose the type of substantive restraint on state legislation that the Court asserts. Rather, the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by §1 of the Fourteenth Amendment, which provides, inter alia: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In interpreting this language, it is important to recall that constitutional provisions are “ ‘written to be understood by the voters.’ ” Heller, 554 U. S., at ___. The objective of this inquiry is to discern what “ordinary citizens” at the time of the Fourteenth Amendment’s ratification would have understood that Amendment’s Privileges or Immunities Clause to mean. Ibid. A survey of contemporary legal authorities plainly shows that, at that time, the ratifying public understood the Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. Pp. 1–34.
ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts II–C, IV, and V, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., join. SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined.

More guns…this country needs more guns…

The Supreme Court ruled on Monday that the second amendment’s “right to
bear arms” is a national right, applying also to state and local
governments. Could this be the end of gun control in America? UCLA Law
Professor Adam Winkler says no and predicts that, despite the fact that
some pro-gun groups are calling it “landmark,” the decision “will have
remarkably little impact.” The Court has made clear that the right to
arms is “not unlimited,” though lawyers figure to profit nicely anyway
by challenging the country’s 20,000 or so state and local gun laws.
Also, the decision could complicate things for Supreme-Court nominee
Elena Kagan, whose Senate hearings begin this week. She figures to hear
more now about the issue; as a clerk to Justice Thurgood Marshall, she
once wrote that she was “not sympathetic” to gun-rights claims.

Honest Services Mostly Survives
From Prof Berman’s blog on Sentencing….

June 24, 2010 12:36 PM | Posted by Bill Otis | 2 Comments | No TrackBacks

The Supreme Court handed down its three honest services opinions this morning (Skilling, Black and Weyhrauch). By far the most important is the Skiling case. Seldom has a defendant suffered a more devastating win. Skilling, it will be recalled, was one of the Enron executives who made a fortune short-selling the stock while lying to shareholders and employees about Enron’s true financial condition.
Skilling won what was certainly the most hyped part of the case. That is, he won the vacating of his conviction for conspiring to violate the honest services statute, on the ground that the conviction came about under what the majority decided was an excessively broad construction of the law. But that is pretty much as far as it went for Skilling. The conviction was not reversed; it was remanded to the lower courts to determine whether the error was, against the backdrop of the other massive evidence of Skilling’s deceitful behavior, harmless.

Almost everything else in the case was bad news for Skilling and other honest services defendants.
First, Skilling lost his challenge to the trial as a whole as having been undertaken against a backdrop of poisonous publicity that made a fair trial impossible in the Houston venue. The Court’s decision here was to be expected. Any other holding would put a premium on the audacity of the defendant’s crime. Where, for example, were we to try Timothy McVeigh? The backside of the moon?

Second, Skilling lost his facial challenge to the honest services statute. The Court held point-blank that the statute is not unconstitutionally vague when limited to bribes and kickbacks. It was not so limited in the instructions given on the conspiracy count at Skilling’s trial, so Skilling won the vacating of that single count. But, for two reasons, the Department of Justice must be thrilled that the statute survived.

The first is that, as the Court pointed out, “The ‘vast majority’ of the honest-services cases involved offenders who, in violation of a fiduciary duty, participated in bribery or kickback schemes.” Thus the statute remains available without legislative re-writing for the bulk of the cases in which the Department would want to use it, including the on-going trial of former Illinois Governor Rod Blogojevich. The essence of the honest services count against Blagojevich is that his appointment of a replacement for ex-Senator Barack Obama was up for auction. That is a straightforward application of the statute as modified by the Court.

The second reason the Department should be thrilled is that most observers of the oral argument had already counted the statute as dead meat. Justice Scalia, who dissented here, was leading the charge against it, and it was hard to find a single voice on the Court who resisted his attack. But in the opinion, Scalia was able to carry with him only Justices Thomas and Kennedy. Justice Breyer, who had seemed openly to riducule the statute at oral argument, joined the majority finding the statute constitutional, as limited.

The good news for the government doesn’t stop there. The Court noted that, while the legislative language adopted in response to the Court’s first limiting decision about the statute in the 1987 McNally case still left it too vague, Congress could try again. Indeed it repeated verbatim its observation in McNally that, if Congress wanted to cover boader forms of dishonesty — for example, self-dealing and undisclosed conflicts of interest that do not directly result in financial harm to the betrayed party — it could do so, but “it must speak more clearly than it has.” Writing statutory language that will reach these somewhat less concrete forms of dishonesty presents a daunting task, as the Court cautioned, but not an insuperable one.

The good news for the rest of us may lie in the longer-term implications of the approach the Court used to preserve the core of the honest services statute. From a law professor’s point of view, the most interesting aspect of the decision is the debate between Justice Ginsburg and Justice Scalia about whether a limiting construction of a statute amounts to respect for, or an abrogation of, Congress’s sole power to write the law. Scalia accuses the majority of simply judicially enacting the honest services statute it wants, sweeping obvious ambiguity and confusion under the rug. Ginsburg answers that preservation of the statute, in a mildly limited form — but in a form consistent with the decided majority of interpretations adopted over many years of lower court review — shows respect for Congress and restraint in exercising the Court’s power to invalidate a statute in its entirety.

Reasonable minds will differ on who won that debate. But what is most telling is that each side was eager to show that it was the most devoted to judicial restraint. Compared with the breezy if not nearly unconscious assumption of judicial supremacy of the Warren Court, this is itself gratifying and important. It is a signal that the conservative legal movement, while far from universally successful in winning substantive points over these last few years, has changed the terms in which the debate is conducted.