A Supreme Pick for Business

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July 21, 2005

A Supreme Pick for Business

By Lawrence Kudlow

Might John G. Roberts Jr. be the first supply-sider to sit on the Supreme Court? Well, not exactly, but the thought is not as far fetched as some might initially think.

C. Boyden Gray, the key organizer of a business coalition that weighed in on the White House nominating process, told me Roberts believes that “government intrusion should be limited.” In other words, in the economic area, Roberts is “likely to take the view that government should get out of the way and not pick the winners and losers; that government should work to level the playing field and trust markets to get the job done.”

Gray, who is also a former lawyer for George H. W. Bush, created an infrastructure to offset the special-interest groups on the left. He was asked to do this by Sen. Trent Lott, with a particular view toward representing business in judicial choices. “Judicial appointments are not all about social issues,” he says, “nor should they be.” He’s right. Believe it or not, roughly 40 percent of Supreme Court cases are now related to business and the economy.

Gray’s Committee for Justice includes Stan Anderson, the legal advisor to the Chamber of Commerce, John Engler, the president of the National Association of Manufacturers, Frank Keating, president of the American Council of Life Insurers, and Connie Mack, the former Senator and pro-growth advocate. This is the first time in anyone’s memory that business has entered the judicial fray, and Judge Roberts was their first choice.

Keating, who is also the former Oklahoma governor and federal prosecutor, told me Roberts believes that “the engine of commerce comes from individual creativity,” and that Roberts “is likely to encourage enterprise through the creativity and genius of individual men and women to produce the next generation of jobs and growth.”

This is a far cry from the Supreme Court of the past 70 years. As Mark Levin writes in his bestselling book Men in Black, the Court has so expanded the commerce clause that it has helped create a huge regulatory state where activist judges have seized private property, taken over school systems and prisons, interceded in private-sector hiring and firing practices, ordered farm quotas and property-tax increases, and expelled God, prayer, and the Ten Commandments from the public square. Levin calls this “socialism from the bench.” However, rather than the regulatory state, Roberts is likely to choose private property and the economic-freedom right of individuals.

Roberts’s nomination also signals a bad hair day for trial lawyers and their excessive damage claims which have so crippled business and destroyed tens of thousands of jobs. In particular Roberts is expected to support recent congressional legislation that would move class-action lawsuits from county and state courts to the federal bench. Experts anticipate an aggressive effort by the trial lawyers to gradually snipe at the Class Action Fairness Act, but Roberts is expected to uphold the congressional law.

Roberts is a genuine free-market judge, someone who will not assume that business is always guilty until proven innocent. He should land on the side of limiting damages for personal injury and product liability settlements, which hopefully will include asbestos, medical malpractice, and phony securities lawsuits. He may also be sympathetic to corporate patent-holders of intellectual property, while seeking to oppose local regulators in areas of telecom access, energy development and production, and streamlined power utilities.

Roberts may at times be at loggerheads with judges Scalia and Thomas, who inexplicably have ruled in favor of abusive damage settlements in personal injury and product liability lawsuits. But the new nominee will not be reluctant to overturn local court decisions if they provide obstacles to national economic growth and prosperity.

Undoubtedly, Roberts and the Supreme Court will be asked to rule on a number of suits concerning state taxes and regulations -- litigation that could thwart the Internet advance that has become such a mighty engine of business productivity and growth. Expect Roberts to look at issues concerning the threat of overregulation with a sharp eye. Indeed, in a general sense, many observers believe he will regard government regulation as a last resort rather than a first judicial instinct.

Let it also be said that President Bush was true to his word. He nominated a conservative based solely on the judicial merits, a church-going Catholic father of two children who is a truly distinguished lawyer and jurist.

As a result, Judge Roberts could be the first modern economic conservative to ascend to the Court. Roberts of course knows full well that judicial change occurs slowly at the margin. But as someone who seems to believe in the importance of market forces that allow the entrepreneurial creative juices to flow, he is likely to make a huge difference.

Lawrence Kudlow is a former Reagan economic advisor, a syndicated columnist, and the co-host of CNBC's Kudlow & Company.

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