What makes a justice on the U.S. Supreme Court good or bad for business?

This is an important question to ponder as confirmation hearings get under way on Monday, January 9, in the Senate Judiciary Committee for Judge Samuel A. Alito, Jr., who is President Bush's choice to fill the vacancy being created by the retirement of Justice Sandra Day O'Connor.

The lead in a January 2 story from the Associated Press seemed to offer a clear answer to the question about Alito and business: "Business couldn't do any better than Chief Justice John Roberts and Samuel Alito on the Supreme Court."  The article went on to offer various tidbits of information and quotes supporting this assertion, though the overall piece wound up being not quite as definitive as its opening sentence indicated.

However, one quote highlighted a key issue for business and free enterprise in general.  That came from Nathaniel Persily, a professor at the University of Pennsylvania Law School, who observed: "Both of them come out of a tradition of reading statutes narrowly.  Both of them come out of a tradition of confining congressional power to the proper sphere."

The critical point is that Alito's record indicates that he would be a Supreme Court justice who treats the law and U.S. Constitution with true respect.  Technically, that's not pro-business, nor is it being anti-business.  Rather, it is simply doing the proper job assigned to the Court, that is, to apply the law and Constitution as written and intended.

In contrast, the judicial activism that has prevailed for so long on the Court has little regard for the elected representatives of the people or the Constitution.  Activist judges violate the separation of powers by adopting the additional role of lawmaker.  This has proven for decades now to be detrimental to free enterprise and to property rights, while proving quite favorable to assorted activists favoring more regulation, more litigation and reduced protection of private property.

After reviewing a wide array of materials and reports on Judge Alito's record, a few points are worth noting from the business perspective.  Alito has shown respect for corporate and political speech; sought substantive proof in workplace discrimination lawsuits; taken a less expansive view of antitrust law; and seems to grasp that the Constitution's Commerce Clause actually places some limits on the regulatory reach of the federal government.

In his written response to the Senate Judiciary Committee's questionnaire, Alito wrote: "Our constitutional system relies heavily on the judiciary to restrain itself."  Later, he continued: "Judges must also have faith that the cause of justice in the long run is best served if they scrupulously heed the limits of their role rather than transgress those limits in an effort to achieve a desired result in a particular case."  That's a refreshingly proper view of the judge's role.

Jonathan Adler, a associate professor of law and associate director of the Center for Business Law and Regulation at Case Western Reserve University, wrote a notable piece on National Review Online (Environmental Enemy #1, January 3, 2006) countering attacks launched by radical environmental groups against Alito.  Adler summed up Alito's view this way: "Contrary to these alarmist claims, Judge Alito`s record is not that of a judge unduly skeptical of environmental regulations, let alone that of an anti-environmental zealot. He has ruled both for and against environmental regulations in accordance with the applicable law and precedent, rather than a predetermined preference for a given policy outcome. He has deferred to regulatory agencies where appropriate, but he has not let government regulators shirk their obligations to justify and explain the basis for their decisions. Viewed in its entirety, Judge Alito`s record is neither ‘pro-‘ nor ‘anti-environment'; it`s pro-law."

Indeed, on all issues of importance to business, one should simply say that Alito's record is pro-law.  Sticking to the law and the Constitution provides an added degree of certainty for business.  After all, businesses have a tough enough time dealing with legislators and regulators creating problems; they don't need activist judges making matters even worse. 

Therefore, simply favoring judicial restraint means that Alito ranks as pro-business, at least compared to the activists dominating the Court for decades now.

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This column may be reprinted with appropriate credit.
 

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