On Saturday evening after news broke that Supreme Court Justice Antonin Scalia had died, I sent out this tweet (entirely in jest):
— Matt Kelly (@compliancememe) February 14, 2016
After all, why not? Everyone talks about the need to take compliance more seriously. Even the Justice Department has hired its own compliance counsel to help prosecutors apply the law to corporate misconduct more wisely. If every public official who preaches about the need for companies to embrace compliance threw his or her weight behind my petition, we’d go straight from Compliance 2.0 to Compliance 10.0 in one shot!
That was the wishful thinking on Saturday night, at least. Then it hit me: maybe this isn’t such a bad idea.
Not the petition, of course. That would go nowhere and like you, I’m too busy watching the train wreck of the presidential nominating contests anyway. But the idea that someone on the Supreme Court should have extensive experience in the corporate world—well, that’s not so crazy.
None of the sitting justices have any real corporate experience. Clarence Thomas barely qualifies, spending three years as a staff attorney at Monsanto in the 1970s; nobody else has any. Perhaps some justice in the past had more corporate experience, but even then, we would be pushing that example (assuming we can find one at all) at least back into the 1960s. That’s ancient history in Corporate America, and totally irrelevant to the complex problems facing business, the public, and the government now.
What we need today—on the Supreme Court and pretty much everywhere else in government and society—are people who can appreciate complex systems, with multiple interests that sometimes compete against each other. We also need people who can appreciate legal concepts in their practical application, including that very necessary but seldom voiced social value known as the profit motive.
Well, one of the best crucibles to forge that wisdom and experience today is the general counsel’s seat at a large publicly traded corporation.
Could a judge get that same experience of navigating conflicting interests through many years in criminal justice, or as an appellate judge, or as a law professor or law firm partner? Of course, and I’m sure the sitting justices have superb knowledge of corporate law. What you can’t easily get from those career paths, however, is the experience of navigating conflicting interests and helping to lead a large number of people to some stated objective and doing so while making money, which is a cornerstone of social advancement and cohesion.
I’m not saying that our constitutional values and legal standards should all be subordinate to making money and running large organizations efficiently. But we shouldn’t delude ourselves that making things work well and work profitably at the same time isn’t an important part of society; on the contrary, it’s crucial to our society. It’s also crucial to a successful corporate compliance program, really—because if you don’t have a program that hits those two points, you’re back in that “Department of No” stereotype we all joke about but secretly fear.
Think about life today. All the systems we use to get things done are becoming more inter-connected and more inter-dependent. They are also intersecting with more and more people, who have differing values and interests. We’re going to encounter difficult problems reaching common ground on data privacy standards and labor liability under “the gig economy,” as much as we are on gun control and abortion rights. We’re going to have more challenges reaching consensus on social values—and that has more than passing similarity to challenges reaching consensus on a strong corporate culture.
And there are nine seats on the Supreme Court, after all. Compliance professionals can daydream about having a comrade in arms sitting on one of them.