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Jewish World Review Nov. 6, 2012/ 21 Mar-Cheshvan, 5773 What today's election means for the Supreme Court By Richard Epstein
Today, the country is mired in a prolonged economic slump that has
slowed growth to a crawl, reduced median family income and produced
record increases in entitlement programs. Most people think
responsibility for this impasse rests primarily with the political
branches of government at both the state and federal levels. But that
assessment overlooks the Supreme Court's role in facilitating the
current malaise.
One reason the court gets little attention for its economic views is
that the cases that bring them into focus aren't ones that divide
cleanly along liberal or conservative lines. In an earlier era,
however, the court had deep divisions about the constitutionality of
virtually every major social and economic initiative, and the impact
of cases decided in the first half of the 20th century is still being
felt.
Federal agricultural price supports, for example, were sustained by
New Deal justices in Wickard v. Filburn in 1942, and that decision
became one of the pillars in this year's opinion on the Patient
Protection and Affordable Care Act (a.k.a. Obamacare).
Rent control and zoning laws were sustained in two 1920s Supreme Court
decisions against the claim that they were unlawful takings of private
property, and those rulings continue to be cited to this day as
justification for denying rights to property owners.
The National Labor Relations Act and the Fair Labor Standards Act also
weathered constitutional challenges in the 1930s, and the
ramifications of those decisions still affect such things as
minimum-wage laws and overtime pay.
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This method of evaluating the constitutionality of a law holds that
the wisdom of economic regulation is left to Congress as long as the
statute can remotely be construed as the means to a legitimate federal
goal. That low standard has allowed numerous poorly conceived laws to
stand, even though they disrupt the operation of competitive markets
and exact a heavy economic toll. In difficult political times, such as
the last decade, Congress and the states have doubled down on past
initiatives, which has magnified the weaknesses of a constitutional
framework that cares little about limited government, economic
liberties or private property.
Unfortunately, today's left-right political coalition places these
economic dislocations outside the scope of Supreme Court review, and
thus has allowed for the endless expansion of programs that divert
public funds from productive activities to wasteful ones, including
such recent chestnuts as ethanol support. The recent fixation with
failed stimulus programs and vanishingly low interest rates diverts
attention from the massive structural changes needed throughout the
economy. Unless faulty economic policies that have received Supreme
Court blessing are scaled back, the economic bad times will continue
apace, no matter what our monetary and fiscal policy.
These issues, along with many others, need to be revisited and
rethought by the Supreme Court, and they should be at the center of
vetting potential court nominees. Of course, one cannot pick Supreme
Court justices with an eye to sparking a constitutional revolution.
But what concerns me about President Obama is his utter unwillingness
to rethink the court's role on these issues.
Mitt Romney seems likely to be a better choice in this area, for it is
critical that future judges, especially on the Supreme Court, actually
understand enough about the economic situation to restore these
questions to the constitutional agenda. In addition, new justices with
a solid appreciation of these matters could influence the votes of
other justices on the many economic and tax issues that come before
the court today on its regular docket.
Cases involving tax, antitrust, security, the environment, land use
and bankruptcy don't arouse emotions the way cases about social issues
do. But for the nation's future, cases involving economic issues are
far more important. The current consensus on the passive role of the
Supreme Court in economic matters has to be scrapped in order to get
the economic recovery back on track. And that — not abortion or
affirmative action — will be the court's biggest challenge over the
next decade.
Every weekday JewishWorldReview.com publishes what many in Washington and in the media consider "must reading." Sign up for the daily JWR update. It's free. Just click here. Richard Epstein is a professor at NYU Law School, a senior fellow at the Hoover Institution and a senior lecturer at the University of Chicago Law School. He wrote this for the Los Angeles Times.
© 2012, Los Angeles Times Distributed by MCT Information Services | ||||||||||||||||||
