Gorsuch, J., concurring in judgement
SUPREME COURT OF THE UNITED STATES
No. 21–1158
JOSEPH PERCOCO, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[May 11, 2023]
Justice Gorsuch, with whom Justice Thomas joins, concurring in the judgment.
The Court holds that the jury instructions in this case were “too vague.” Ante, at 10. I agree. But to my mind, the problem runs deeper than that because no set of instructions could have made things any better. To this day, no one knows what “honest-services fraud” encompasses. And the Constitution’s promise of due process does not tolerate that kind of uncertainty in our laws—especially when criminal sanctions loom. “Vague laws” impermissibly “hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct.” United States v. Davis, 588 U. S. ___, ___ (2019) (slip op., at 1).
Honest-services fraud and this Court’s vagueness jurisprudence are old friends. The story traces back to the early 1940s when a string of lower courts began stretching the federal mail-fraud statute’s phrase “scheme or artifice to defraud.” 18 U. S. C. §1341. Everyone understood that the phrase covers efforts to swindle money or property. But some lower courts began suggesting that the phrase also sweeps in schemes to deprive others of “intangible rights,” including the right to “honest services.” Skilling v. United States, 561 U. S. 358, 400 (2010) (citing cases). What did this new “honest-services fraud” concept encompass? Even
