As the confirmation hearings for Elena Kagan are set to begin, expect to hear as much about the Chief Justice as the Solicitor General awaiting confirmation. This term has come to symbolize another hard lurch to the right by the Court, but unlike previous lurches, the beneficiaries of the decision were not social and moral conservatives. Rather, the Roberts Court has unabashedly embraced a far right corporatism that will no doubt flavor the Kagan confirmation hearing.
Take for instance the Courts recent “honest services” decision. For over 20 years prosecutors have attacked corruption, at both the public and the private level, with a broadly worded criminal statute that resulted in high profile convictions of people like Jeffrey Skilling, the architect of the Enron fraud. But under the guidance of Chief Justice Roberts, such prosecutions are no longer possible.
According to the Court’s decision, the only acts that violate the honest services statute are bribes or kickbacks. Construct an elaborate PONZI scheme like Bernie Madoff or an accounting shell like Skilling’s Enron collapse and, under this Court, the crook did not deprive its employer of their honest services. In the Skilling case, the former executive had been convicted of a conspiracy to commit fraud based on prosecutors’ claims that Skilling had denied his company his “honest services”. This conviction is now under question as a lower court must decide if all of the other counts that Skilling was convicted under were tainted by this error of law. Because the Court noted that Skilling’s charges did not involve any bribes or kickbacks, there is a possibility that his entire conviction could be nullified.
While the result of the Skilling decision may leave a bad taste in the mouths of those of us who prefer our white collar criminals to stay in prison, if the Roberts Court is going to strike down as unconstitutionally vague prosecutorial tools then our ire should turn toward Congress to legislate effective reform statutes. As we’ve seen so far this year, if given any opening to craft an advantage for corporations and their executives this Court will do just that. And as we’ve also seen this year, the extent of our corporate criminal reach knows no bounds, which means that Congress has quite the task ahead.
photo courtesy of vlQleS via Flickr