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How Scalia's legacy echoes in Supreme Court's final decision of the term

Models of thought

In the ruling, which unanimously vacated the 2014 federal corruption conviction of former Virginia Gov. Robert McDonnell, both Scalia’s vision for the high court and his concerns for it were on display.

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    Former Virginia Gov. Bob McDonnell departs after his appeal of his 2014 corruption conviction was heard at the US Supreme Court in Washington on April 27, 2016. The Supreme Court on June 27 threw out McDonnell's corruption convictions in a ruling that could hem in federal prosecutors as they go after bribery charges against other politicians.
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For decades, Justice Antonin Scalia was an outsize presence on the United States Supreme Court. Since he died in February, the short-handed court has wended its way through a number of controversial cases – punctuated by occasional, wrenching deadlock.

On Monday, the high court finally reached the finish line, and in its final decision of the term Justice Scalia’s legacy was again palpable.

In the ruling, which unanimously vacated the 2014 federal corruption conviction of former Virginia Gov. Robert McDonnell, both Scalia’s vision for the court and his concerns for it were put on display. Scalia was critical of the vagueness of the bribery statute at issue and, in fact, wrote the opinion cited as precedence in the case. But experts say the decision itself also highlights the lack of political experience on the court as well as the homogeneity of the justices’ résumés – which he wrote about with some consternation last June.

The case itself concerned whether prosecutors were justified in charging Mr. McDonnell under federal bribery statutes after he received more than $177,000 in luxury items, vacations, loans, and other largess from businessman Jonnie Williams, or whether the application of the bribery statutes in this case could result in a “criminalization of politics,” wherein prosecutors use vague or overbroad corruption laws to pursue charges for run-of-the-mill political activity.

McDonnell argued that, while he did receive those gifts, he never did anything in return that qualified as an “official act,” only arranging meetings for Mr. Williams with other state officials.

The court sided with McDonnell – unanimously, albeit with reservations.

While McDonnell’s behavior was far from “normal political interaction” with a constituent, Chief Justice John Roberts wrote that prosecutors’ broad interpretation of the federal bribery statutes “would raise significant constitutional concerns,” and “could cast a pall of potential prosecution” over normal politician-constituent relationships.

“Officials might wonder whether they could respond to even the most commonplace requests for assistance,” he added, “and citizens with legitimate concerns might shrink from participating in democratic discourse.”

In no way did the justices condone McDonnell’s behavior – while they vacated his convictions, they did not dismiss the charges, meaning he could be convicted again under a narrowed prosecution.

“There is no doubt that this case is distasteful,” writes Chief Justice Roberts. “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.”

It is this approach that carries echoes of Scalia, experts say.

“There’s no question he would have been in McDonnell’s camp,” says Randall Eliason, a professor at George Washington University School of Law in Washington. “He was pretty critical of these white collar statutes in general.”

Scalia wrote the majority opinion in perhaps the court’s leading discussion on the federal anti-bribery statute at issue in McDonnell’s case, notes Professor Eliason, an expert on public corruption.

In the opinion – that a California agricultural cooperative didn’t violate federal law when providing gifts to a former Secretary of Agriculture – he warned of criminalizing a championship sports team giving the president a replica jersey, or an Education secretary being indicted for accepting a school baseball cap on a visit to a high school.

In other writings, he argued that the statute was too vague to be constitutional.

Richard Hasen, a professor at the University of California, Irvine, School of Law, wrote in a blog post that the McDonnell decision “shows the continuing important influence of Justice Scalia in this area of the law.”

“Vague and broad laws criminalizing ordinary politics raise due process problems, selective prosecutions, and unfair treatment,” wrote Professor Hasen. “Justice Scalia signaled this and here a unanimous court followed his lead.”

But the decision also gave new voice to a concern Scalia expressed last year, when in a dissent from the court’s ruling establishing a constitutional right to same sex marriage, he questioned the experiential diversity of the court, describing it as “a select, patrician, highly unrepresentative panel of nine.”

All but one of the justices are former federal appeals court judges (Elena Kagan served as dean of Harvard Law School and US solicitor general), and none has ever run for public office. President Barack Obama’s nominee to replace Scalia – Merrick Garland, a federal appeals court judge from Harvard Law School – also would fit this mold.

The last justice to have any legislative experience was Sandra Day O’Connor, who retired in 2006. Some experts believe this may have some effect on the court’s decisions, at least in cases that involve the political system.

The most prominent example is the Citizens United case, in which the court transformed the US political landscape by ruling that the First Amendment prohibited the government from restricting election spending from corporations and labor unions.

The decision “reads like it was written by law professors, not anyone with political experience,” Timothy O’Neill, a professor at the John Marshall Law School in Chicago, told the Monitor in February. “You wonder, if anyone had any experience in politics, if a case like Citizens United would have decided the way it was.”

McDonnell’s brief to the court referenced Citizens United, and, while it wasn't mentioned in the court's decision, some experts believe the justices viewed his case through the same legalistic (and perhaps naive) lens.

“Both opinions seem to discount the influence of money in the political process,” says Eliason. “The court draws a very narrow view of what qualifies as corruption, and maybe doesn’t have a very realistic real-world view of what goes on – that money does provide access and does corrupt the process.”

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