WASHINGTON — A federal law that is a favorite tool of prosecutors in corruption cases met with almost universal hostility from the justices in Supreme Court arguments on Tuesday.
The law, enacted in 1988, makes it a crime “to deprive another of the intangible right of honest services.” The law is often used to prosecute corporate executives and politicians said to have defrauded their employers or constituents.
Justices across the court’s ideological spectrum took turns on Tuesday attacking the law as hopelessly broad and vague.
Justice Steven G. Breyer estimated that there are 150 million workers in the United States and that perhaps 140 million of them could be prosecuted under the government’s interpretation of the law.
Complimenting the boss’s hat “so the boss will leave the room so that the worker can continue to read The Racing Form,” Justice Breyer said, could amount to a federal crime.
The justices heard arguments in two separate cases concerning the law on Tuesday. One involved Conrad M. Black, the newspaper executive convicted of defrauding his media company, Hollinger International. In his Supreme Court briefs, Mr. Black argued that the law should not apply to him because he had not contemplated that Hollinger would suffer “some identifiable economic injury.”
But at Tuesday’s argument, Mr. Black’s lawyer, Miguel A. Estrada, spent much of this time urging the court to strike down the law entirely as unconstitutionally vague. That idea seemed attractive to several justices, though Justice Breyer suggested that the court might want to ask for additional briefing on the point.
The justices allowed Mr. Estrada to speak for long stretches, which is unusual, and the tone of the argument was more brainstorming session than oral advocacy, with several justices and Mr. Estrada trying to identify the smartest way to fix the law.
In the first of the two hour-long arguments, Mr. Estrada was asked only about 25 questions; his adversary, Deputy Solicitor General Michael R. Dreeben, was asked more than 60.
The second appeal was from a former Alaska legislator, Bruce Weyhrauch, who did not disclose that he had been soliciting work from a company with business before the Legislature. Mr. Weyhrauch argued that the federal honest services law should not apply in public corruption cases where no violation of a state disclosure law was alleged.
Some justices seemed uncertain about the wisdom of that particular limiting principle. But that discomfort did not seem to make them any more sympathetic to the law as a whole.
The court will hear a third honest-services case in the spring, that one involving Jeffrey K. Skilling, the former chief executive officer of Enron Corporation.
Mr. Dreeben defended the honest-services law in both arguments on Tuesday, and he was given a rough time by the justices.
The law effectively overruled a 1987 Supreme Court decision, McNally v. United States, which limited the federal mail fraud statute to deprivations of tangible property. Justice John Paul Stevens dissented in McNally and was the only justice at Tuesday’s argument who appeared sympathetic to the government.
Mr. Dreeben’s argument leaned heavily on judicial decisions before 1987, which he said established “the core understanding of the duty of loyalty” that the 1988 law had restored. That core, he said, includes forbidding kickbacks, bribes and “undisclosed conflicts of interest by an agent or fiduciary who takes action to further that interest.”
Mr. Dreeben’s formulation did not seem to satisfy most of the justices, on several grounds.
Justice Ruth Bader Ginsburg said that “the lower courts were massively confused” before 1987 and so could not have agreed on core concepts.
Justice Breyer said the law “covered 6,000 things,” of which the government has now “picked, perhaps randomly, three.”
Justice Antonin Scalia added that, in any event, the government’s preferred interpretation cannot be rooted in the actual text of the statute.
“You speak as though it is up to us to write the statute,” Justice Scalia told Mr. Dreeben. “That’s not our job.”
In quick succession, Chief Justice John G. Roberts Jr. and Justices Scalia and Breyer recited what they called a fundamental principle: that the public must be able to understand what a criminal law means.
“If it can’t,” Chief Justice Roberts said, “then the law is invalid.”