SCOTUS Nomination Matters to Small Businesses and Entrepreneurs

By at 1 February, 2017, 1:49 pm

by Raymond J. Keating-

It verges on the cliché. But, in fact, businesses and investors do not like uncertainty. And given such anathema toward uncertainty, entrepreneurs, businesses and investors should support President Donald Trump’s selection of Judge Neil Gorsuch to fill the current vacancy on the U.S. Supreme Court.

Over the past decade, the existence and persistence of uncertainty ironically has become predictable. Specifically, uncertainty was a constant that swirled around public policy. Small business owners, entrepreneurs, corporate executives and investors had to worry about what is or might be coming next in terms of regulations, what regulations actually mean (see ObamaCare and Dodd-Frank), taxes, monetary policy, the level and impact of government spending, and how trade policy plays out. During the Obama years, it all was about negative uncertainty, that is, not just the concern over changes in public policy, but that the impact of such changes would be negative in terms costs and incentives for entrepreneurs, businesses and investors.

At least one branch of the federal government, though, should be about certainty, rather than uncertainty. After all the job of the U.S. Supreme Court is, quite simply, to apply and interpret the U.S. Constitution and the laws generated by the legislature. Indeed, the rule of law should bring about greater certainty for citizens, including when citizens are at work in the business arena.

Unfortunately, for more than a century, but especially over the last eight decades, judicial activism, whereby justices decide to take on the job of the legislature by re-writing or even ignoring the Constitution and the law, has created uncertainty in the last place where there should be any uncertainty. The problem largely springs from the activist justices on the Supreme Court who believe that interpreting the Constitution and laws goes beyond the actual text and intent of those who wrote the Constitution and the laws, and is rather about the judges presenting their own views and preferences. Clearly, such activism creates another level of uncertainty regarding government policies and laws for the business and investment communities.

Therefore, businesses should be pleased with the Gorsuch nomination. Judge Gorsuch certainly is qualified for the Court in terms of his experience. He attended Columbia University, received his law degree from Harvard (and graduated from both with honors), and was a Marshall Scholar at Oxford University. He clerked for Supreme Court Justices Byron White and Anthony Kennedy. And he has served on the U.S. Court of Appeals for the Tenth Circuit since 2006, after being unanimously confirmed by the U.S. Senate.

But far more important is his judicial philosophy. At the announcement of his nomination on January 31, 2017, Judge Gorsuch declared:

“I consider the United States Senate the greatest deliberative body in the world, and I respect the important role the Constitution affords it in the confirmation of our judges. I respect, too, the fact that in our legal order, it is for Congress and not the courts to write new laws. It is the role of judges to apply, not alter, the work of the people’s representatives. A judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands.”

This lines up with what Gorsuch wrote in an essay saluting the late Justice Antonin Scalia (as highlighted in a USA Today report):

“Judges should… strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

And in a case where the NLRB dictated how back pay should be calculated by an employer deemed to have unlawfully reduced the hours of a unionized worker, Gorsuch again gave proper deference to the law and what legislators intended over activist preferences of, in this case, regulators (as quoted by The Wall Street Journal):

“In the end, it’s difficult to come away from this case without wondering if the Board’s actions stem from a frustration with the current statutory limits on its remedial powers.”

It’s clear that Judge Gorsuch respects the Constitution, the separation of powers, and the rule of law. And for all of those reasons, and the accompanying clear positive implications in terms of reducing uncertainty surrounding government actions and policies, entrepreneurs, businesses and investors should vigorously support the nomination of Judge Neil Gorsuch to the U.S. Supreme Court.


Raymond J. Keating is chief economist for the Small Business & Entrepreneurship Council.

Keating’s latest book published by SBE Council is titled Unleashing Small Business Through IP:  The Role of Intellectual Property in Driving Entrepreneurship, Innovation and Investment and it is available free on SBE Council’s website here.


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