Gorsuch, J., concurring in judgement
“throw[ing] out the statute as irremediably vague,” the majority elected to fill in some of the blanks. Id., at 403–404. To that end, the majority “look[ed] to the doctrine” of honest-services fraud as it had developed in the lower courts “in pre-McNally cases.” Id., at 404. Recognizing the many internal tensions in that line of cases, the majority attempted to “pare that body of precedent down to its core.” Ibid. What exactly falls within that “core”? The majority could not say. All it could muster was that, “[i]n the main,” honest-services convictions had involved “fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived.” Ibid.
Justice Scalia, Justice Kennedy, and Justice Thomas declined to participate in Skilling’s rescue mission. They saw the Court’s decision as an act of “not interpretation but invention.” Id., at 422 (opinion of Scalia, J.). Nothing in the statute, they observed, confined breaches of the duty of honest services to bribes or kickbacks. Indeed, not a single lower court had understood the concept to be limited in that way. Id., at 423. Nor could the dissenters find anything in the judicial power permitting them to “replac[e] a vague criminal standard that Congress adopted with a more narrow one (included within the vague one).” Id., at 422.
Even on its own terms, the dissenters noted, the majority’s reconstruction of the statute failed “to eliminate [its] vagueness.” Id., at 421. The majority had not attempted to define what constitutes a breach of the “ ‘honest services’ obligation,” but sought to identify only conduct that fell within its “core.” Ibid. Nor had the majority done anything to “solve the most fundamental indeterminacy” in honest-services-fraud theory, ibid., for nothing in its decision explained what kinds of fiduciary relationships are sufficient to trigger a duty of honest services in the first place. Is the duty of honest services limited “to public officials” serving
