The oddest thing in the debate about the honest services statute is that honesty goes all but unmentioned.  This is just as well for Skilling, whose outright lying and breathtaking deceit hastened the collapse of Enron and made him a poster boy for corporate fraud.  Enron's demise exacted an enormous toll, and, in some cases, wiped out thousands of investors and employees, and in that way was an apt precursor to the banking collapse a few years later.  Indeed, Skilling and Enron were a dress rehearsal for the banking bubble, since both were built on deceit that metastasized throughout the system -- deceit enlisted for the usual reason, namely, greed -- and both fostered undeserved and severe pain for thousands of honest people.

The heartening thing about this case is that Skilling is likely to remain in jail no matter what the Court decides about the federal honest services statute under which he was convicted.  This is because Skilling was also convicted under numerous other counts charging garden-variety fraud, and is thus likely to wind up serving most of the 24 years to which he was originally sentenced.  The disheartening thing is that he is likely to win his argument that his conviction under the honest services statute cannot stand.  When the Court heard argument about the same statute earlier this year in the Black and Wehyrauch cases, most observers thought, correctly in my view, that a majority of the Court, prominently including its most conservative Justice, believed the statute was too vague to pass Constitutional muster.

The earlier arguments explored, sometimes in overtly sarcastic terms, what specific "honest services" are demanded by the language Congress adopted.  Is the law violated if an employee reads the racing form after misleading the boss into thinking he's actually working? What about playing hooky to go to a ball game?  More broadly, might the statute be so vague that, as Justice Breyer asked, a hundred million workers might be violating it without knowing it?

The Court asked these questions, moreover, even though the statute's vagueness had not been directly put in question by Black and Wehyrauch's briefs, and the Court is ordinarily reluctant to decide questions, particularly Constitutional questions, not squarely raised by the parties.  Here the question has been raised; indeed, unconstitutional vagueness is Skilling's primary argument.  But while that argument has appeal as an abstract matter, Skilling seems uniquely unqualified to benefit from it.  He wasn't reading the racing form and he wasn't sneaking off to go to the ball game.  For months, he was proclaiming to all within earshot that Enron's business was in good shape knowing that it was, in truth, all but bankrupt.  By lying to help prop up Enron's stock market value, Skilling made off with a good deal for himself:  As quietly as possible, he sold off $15 million of his own holdings a few months before Enron went belly up.  Thus, Skilling is hardly a victim of any statutory vagueness; for whatever the statute's gauzy outer limits might be, his behavior was at dead center.

The Court has not issued its opinions in Black and Wehyrauch, leading many to think it's awaiting the present case to make a broad ruling on the honest services statute, probably a ruling either striking it down or limiting its application to public officials  (which was, after all, the context in which Congress passed it).  That seems likely to me.  But there is a quirk in the case which presents at least some chance the Court will not make a broad ruling.  The quirk is that the case can be decided on narrower grounds, namely, that the government's proof was insufficient to sustain the honest services conviction.

In defending the statute in the earlier arguments, and again in its brief here, the Government attempted to blunt the vagueness attack by arguing that the statute is limited by requiring proof of three specific elements:  Breach of a duty of loyalty; specific intent to deceive; and materiality.  The government proved the latter two, but fell short on the first.  As CEO of Enron, Skilling's main job was to increase the market value of the company.  That is exactly what he did, albeit by lying.  Unlike the defendants in the  Court's McNally case 23 years ago -- the case whose limitation on the earlier federal fraud statute gave rise to the current "honest services" version -- Skilling did not have a concealed conflict of interest with the principal.  Instead, he had a confluence of interest.  A corrupt company was, in its own perverse, Alice-in-Wonderland way, loyally served by the aligned corruption of its head.  It thus seems to me that the conviction could be reversed for the simplest of reasons:  The government didn't prove its case.

If that is correct, the Court has an easy and traditional route to decision here:  it historically decides cases on the narrowest available grounds, and avoids Constitutional rulings.  Basing a decision on insufficiency of the evidence thus could well be the way out, but I doubt the Court will go there, because it isn't looking for a way out.  The questioning in the earlier cases suggests it wants to extend a broader reach.

Still, it should think twice, and not just because of traditional (and wise) restraints on unnecessary Constitutional holdings.  The main reasons offered by the Justices for doubting whether the statute sufficiently puts people on notice of what behavior is forbidden turn out to be dubious.  The subtext of the Court's questioning in Black and Wehyrauch was that people can't really know when they're trying to pull a fast one that could get them in trouble with the law.  But evidence in those cases and even more so in this one proves otherwise.  Indeed, it illustrates the truth the government's brief seems unwilling to speak, namely, that people know full well when they're cheating.  Employees by the million may well spend worktime messaging on Facebook or looking at the porn site or the betting odds.  But that such behavior is widespread scarcely shows, or even suggests, that it's honest or that anyone thinks it's honest.   It is precisely because it's known to be dishonest that the instantaneous mouseclick when the boss shows up at the door has become an American artform.  Thus the Court's real objection seems to be, not that the statute is too broad for people to know what is forbidden, but that the culture has come largely to accept this "slightly forbidden" behavior, and that a statute making it potentially a federal felony is not so much too vague as it is too sweeping and too harsh, given what in today's world is accepted as grounds for getting docked a pay's pay, or at worst getting fired, but by no means for going to federal prison.

That the Court is inclined to accept the culture of which it is a part is not exactly surprising.  But at a deeper level, it's ominous.  That's because the culture the Court is accepting is a culture of deceit.

The truth is that we are drowning in slick talk and slick dealing.   It's everywhere from "teaser" rates to liar loans to the razzle-dazzle fine print in your frequent flier statement, your car repair warranty and your credit card bill.  Your e-mail is bulging with offers ranging from half-truth come-on's to outright swindles.  You can't watch TV for 20 minutes without hearing some miraculous offer to "fix" your credit, all followed up by some fellow who races through the real terms in a voice so fast and low no human ear could understand it.

The law is a moral teacher, and for good or ill the Supreme Court, its Constitutional limitations notwithstanding, has become our National Council of Elders.  The Court probably knows that our society could use a lesson in the need for telling the truth.  But even the most powerful instrument of law has little chance of rescuing respect for honesty from a culture that has so thoroughly marginalized it.  The country most in need of an enforceable requirement for honest dealing in everyday life is the country least likely to achieve one.  Thus while it is not impossible that the Court could ratify such a requirement in this case, it will probably find itself without the tools or the desire that would make it willing to take up the task.