Did The Roberts Court Just Help Free Enron’s Skilling?

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


johan l.
paul l.6 years ago

Yes, indeed!
I totally agree with Walter G.
Ponzi schemes for instance can deprive an enormous number of pensioners of their income.
We all know that pensions on the whole are not adequate.
If a Ponzi scheme is worded in such a manner that it looks eminently feasible, a whole lot of people will fall for it.
Here in S.Africa a family has deprived R230million from mostly needy people.
But listening to this nonsense being spouted, this is acceptable!

Katherine Sweeney

Roberts is the perfect example of why more and more Americans distrust our political system, and rightly so. Criminals' actions are not condemned - they are condoned!

Lynn C.
Lyn n C.6 years ago

Our only voice, it seems, is at the polls. Elect those who represent what you want to see happen in your country...the alternative is what we have now...nuf said

Jeffrey W.
Jeffrey W.6 years ago

Jessica, your dishonesty knows no bounds. Your referring to the Roberts Court, while accurate, is really an attempt to mislead by portraying this as a conservative assault on justice. Would it not have been more accurate to point out that Ruth Bader Ginsburg actually authored the opinion for the majority? Or that the entire court concurred on this point?


A reading of the decision will expose your breathless exaggeration of the effect the ruling for the dishonest silliness it is.

catherine s.
catherine s.6 years ago

what youre surprised

Deborah W.
.6 years ago

Bush, Cheney and Rove are laughing their heads off, we should use the guillotine to make them stop. Amen.

Roy, just be careful, or some SS Storm Trooper will be "visiting" your house in the form of kicking down doors because you even suggested "harm" to the worst fascist nazis since Hitler died. I hope and pray that Bush, Cheney and Rove learn by experience who the bitch called Karma is. NO Secret Service person can protect them from that bitch.

Deborah W.
.6 years ago

Writer fool, it is justified to call the Republican right wing nazis because that is exactly what they are. They would kill all people with disabilities living on social security if they thought they could get away with it. Health insurance companies are essentially doing that by forcing people with pre-existing conditions ("imperfect people" in other words) to pay out of pocket, hoping they go bankrupt, become homeless, and die from the elements BECAUSE they are "imperfect." If that isn't naziism, what is? The health insurance companies are the present "killing machines" of the Republican party since they know they would never get away with using gas ovens.

writer fool
writer fool6 years ago

Joanna e. how can you say such a rediculous thing. The nazi judges where put into their seats, after the purge of jewish judges, lawyers, professors, and all jews in the government.
Court appointments, were just that. SS or nazi judges would go to re education camps... and sworn to hitler, they would die for him..
We are far, far, far, from nazi appointments of judges...
I really wish you would know this history alot better, before calling everything nazi this, and nazi that.... i have studied for fourty years these disgusting nazis... please at least look it up in a book..... calling things, or someone a nazi is a very serious contemplation.

writer fool
writer fool6 years ago

The Roberts court is leaning extremly right. i pray and hope ms. kagan gets the nod. she will, i dont think the dems need any other votes but their own.. however she still must be vetted... I so look forward to anotherleft leaning judge to take the bench. the roberts court has already done enough damage... big companies gets away wth , literal murder.. hopefully the appointment of Kagan will slant the court to the left.

Gene Rush
Gene R.6 years ago

Ditto, Roy V.'s comment. These things happen because mentally rational people keep their mouths shut WAY TOO LONG. Also, the moderate members of the court were WAY TOO QUIET during the confirmation hearings of the NEW NATZIS!