The Business of Appointing the Next Supreme Court Justice

By at 6 July, 2018, 1:47 pm

Small Business Insider

by Raymond J. Keating-

Nothing in this world is perfect, especially when it comes to government. But we Americans came up with the best form of government known to man, with ideas, principles and specifics laid out in the Declaration of Independence and the U.S. Constitution.

When a president is given the opportunity to make an appointment to the Supreme Court, as is the case now with the announced retirement of Justice Anthony Kennedy, assorted interests make bold declarations about who should be appointed and what positions the nominee should hold on a wide array of issues. That’s unfortunate because that’s not what this is about in the end. Rather, it’s about judicial philosophy.

Apply and Interpret the Constitution

Indeed, what’s often ignored in all of the political noise is what a Supreme Court justice actually is supposed to do. Given the separation of powers laid out in the Constitution – a brilliant stroke by the Founding Fathers to prevent tyranny and preserve liberty – the Supreme Court is not a legislative body. Making laws is the purview of Congress, while the president executes and the courts interpret the law. So, the nine Supreme Court justices are not supposed to legislate from the bench, such as rewriting laws passed by Congress, or declaring that the Constitution says something that it does not, or ignoring what the Constitution does say. Rather, the job is to apply and interpret the Constitution and the laws as they are written and according to, as best can be determined, the intentions of the authors. That’s it. Nothing more.

Still, that’s a critical task. And it’s certainly one that matters to business. Too often the assumption is that the business community has little interest in Supreme Court appointments, as long as individual cases come down the way individual firms or groups of businesses want them to be decided. But that’s a problematic take.

Appointments Impact Free Enterprise and Entrepreneurship

In reality, free enterprise has thrived in the United States more so than practically anywhere else on the planet thanks to the foundations of our government, again, established by the Declaration and the Constitution.

Business and the economy thrives when the rule of law prevails, as opposed to the whims of judges or bureaucrats. Therefore, businesses should be fully behind nominees who pledge to be true to the Constitution and the law as written. That is, business should support court nominees who favor judicial restraint, as opposed to judicial activism.

Judicial activism – whereby justices choose their own preferences, views and/or whims over the Constitution and the law – undermines the institutions that are vital for a healthy free enterprise system, including by creating varying degrees of uncertainty and assorted levels of threats.

If President Trump selects a nominee for the U.S. Supreme Court who has made clear his or her allegiance to judicial restraint, that is, properly applying and interpreting the Constitution and the law as written and intended, then that nominee deserves the support of entrepreneurs and America’s small business community.


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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