Though abortion is the hot issue in Supreme Court appointments, the court’s decisions on economic matters can profoundly affect the nation over time.
It is not clear how John Roberts, the new chief justice, or Samuel Alito — if confirmed as an associate justice — will rule on economic issues. But the trend in decisions is toward less government regulation of economic activity.
Even economists skeptical about the efficacy of government action in economies agree that government must set “rules of the game.” Our constitution recognizes this with federal regulation of interstate commerce, patents and copyrights, and prohibition of tariffs on interstate trade and of any export taxes. The Fifth Amendment requires compensation in any taking of private property for public use. And all sorts of issues with economic implications inevitably come before the Supreme Court.
Slavery was the burning issue of the nation’s first 75 years. Was it legal for one person to own another? Most of the Constitution’s framers thought so. The Supreme Court upheld that view, most famously in the Dred Scott decision only four years before the Civil War.
After that war, questions of federal regulation of railroads or monopolistic abuses came to the forefront. The Supreme Court’s rulings thwarted both aims until the Interstate Commerce Commission was established in 1887 to deal with the first and the Sherman Antitrust act passed in 1890 for the second.
The Sherman Act, passed to break up any “illegal combination in restraint of trade” became primarily an anti-labor union measure as interpreted by the court. Congress had to pass the Clayton Act in 1910 to accomplish what it set out to do 20 years earlier.
Conservative courts also overturned laws that limited employment of children. Louis Brandeis, Woodrow Wilson’s nominee to the Supreme Court in 1916, established his national reputation as a constitutional scholar by arguing for the constitutionality of such laws.
A conservative court overturned many programs in Franklin Roosevelt’s New Deal. FDR’s attempt to counteract this by increasing the size of the court cost him much popular support in his second term. But as humorist Finley Peter Dunne famously observed, “The Soopreme Court follows the iliction returns.” Over time, rulings became less hostile to Roosevelt’s initiatives.
After Roosevelt, opinions still centered on whether to regulate or not, but did not discuss how to regulate most efficiently.
Justice Stephen Breyer, a Clinton appointee and one-time staff member for Sen. Edward Kennedy, D-Mass., has led in acknowledging that market forces can be harnessed to achieve legitimate public purposes. Legal views that are pro-market are not necessarily pro-business or pro-wealthy people. This idea still jars many liberals.
Roberts and Alito are more likely to concur with Breyer’s view than justices appointed prior to 1990. The next few years should be interesting.
© 2005 Edward Lotterman
Chanarambie Consulting, Inc.