After weeks of attacking an imaginary Mitt Romney — one devoted solely to making the rich richer and the poor poorer — the Obama campaign has come around to accepting that “it’s the economy, stupid.” First, the campaign issued a 20-page picture book outlining Obama’s economic plan for a second term; now it’s proposing a cabinet-level Secretary of Business.
So finally both candidates are focused on the central concern of most voters. But if voters are concerned about the economy, they would be well advised to think about the effect the election will have on the courts. A vibrant economy depends on security of property and contract, clear and predictable regulation, and respect for the constitutional limits on government power and the constitutional rights of individuals. In other words, a thriving economy depends on the rule of law.
Although every public official takes an oath to support the United States Constitution, a document born of a belief in and a commitment to the rule of law, it falls to the judiciary to enforce that obligation by declaring what the law requires when cases are presented to the courts. Thus it has been ever since Chief Justice Marshall declared in Marbury v. Madison that “[i]t is emphatically the province and duty of the Judicial Department to say what the law is.”
While this power of judicial review has been debated and sometimes questioned ever since, it is firmly established as a bedrock principle of the constitutional separation of powers. We need look no farther than last term’s decision in National Federation of Independent Business v. Sebelius (the Obamacare case) to know that, for better or worse, virtually everyone acknowledges that the Supreme Court has the final say on the constitutionality of legislation.
Most will agree that it matters who serves on the Supreme Court. It also matters who serves on the courts of appeals and the district courts. Presidents make the appointments to these courts, subject to the advice and consent of the Senate. For the next four years, either President Obama or President Romney will make those appointments.
Cynics will say it is all politics, and to the winner goes the spoils, including the power to appoint judges who will promote the president’s policy agenda. But we should have a higher opinion of our federal courts and, for the most part, they have earned our higher regard. Most federal judges, though not all, take seriously their obeisance to the rule of law. Where they differ among themselves is in their understanding of what the rule of law requires.
Some, like Justice Stephen Breyer, understand the law to be organic — to be growing and evolving to meet the changing needs and conditions of society. From that perspective, the judge’s role is to nurture the growth, to guide and facilitate the evolution of law. Others, like Justice Clarence Thomas, understand the law to be fixed — its meaning nothing more or less than intended by those with authority to make the law. From that perspective, the judge is interpreter of the law, never the law maker.
Of course, in the real world of judging, the boundary between these two views can be blurred. But over the course of any particular judge’s service and across the whole of the federal judiciary, it matters which approach judges profess. And so it matters which kind of judges the presidential candidates say they will appoint.
If it’s the economy, stupid, we should prefer a president who will appoint judges who understand the law to be fixed, subject to change only by those with authority to do so and only in conformance with the requirements of the Constitution. Security in property and contract, predictability in regulation, and certainty of even-handed enforcement are the essential legal elements of a productive and prosperous economy.
The next president will appoint nearly a quarter of all sitting federal judges, possibly including as many as two or three on the Supreme Court. Those judges serve for life, if they choose. There is much at stake.
Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.
