Supply Side Supreme Court

by Wendell Cayton

It’s just possible that John B. Roberts Jr. will be our first supply side member of the Supreme Court, according to Lawrence Kudlow, also well known for his outspoken, supply side views. As the hearings on Judge Roberts’ nomination to become the next Chief Justice of the nation’s highest court wound down, it was clear that his conservative views might just be the elixir business has been looking for in the court for years.

Supply side economics received a large burst of publicity in the 1980s as the Reagan economic team put the principles to work. Supply side theory contends that growth in the economy can be stimulated to a greater degree by unleashing entrepreneurial capitalists free to work, innovate, and grow businesses in a low-tax as well as a lower-regulatory environment.

According to Kudlow, “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.”

It is ironic that just before the nomination hearings began, Jude Wanniski, journalist/economist, who coined the term “Supply Side Economics” died on August 29th. As an editorial writer at the Wall Street Journal® in the 1970s, Mr. Wanniski was part of a core group of young, revved-up conservative thinkers hired by editorial page editor Robert L. Bartley.

He was a hero of many economic/fiscal conservatives in part due to his role in publicizing Laffer Curve in mainstream media. The Laffer Curve, as promoted by Wanniski and economist Art Laffer, held that an economy would respond best and produce higher tax revenues for the government if taxes were reduced.

Frank Keating, the president of the American Council of Life Insurers and the former Oklahoma governor and federal prosecutor, told Kudlow that Judge 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 would be a far cry from the liberal interpretation of the Commerce Clause that was behind many of the questions asked by the more liberal members of the Judiciary Committee during their grilling of Roberts. The Commerce Clause has long been a favorite of those advocating greater, rather than lesser, government controls on business and individuals.

Over many decades activist judges in the court system have expanded the Commerce Clause to create a regulatory state that has 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 properties.

Judge Roberts responded to the incessant questioning by Democratic committee members by making it clear that he was there to interpret the law, not make the law. As he so eloquently stated in his opening address, he is there to call balls and strikes, not hit the ball.

In general I found his answers to be on point, logical and consistent with the views of those who believe judges do not make laws, rather they interpret and apply them. On the other hand, the Democrats, who will never find a Bush nominee to their liking, insist on politicizing the process, and will not recognize nor accept the role of the Chief Justice as apolitical.

Bruce Fenton is a financial consultant, a writer, and the president and founder of Atlantic Financial Inc. Bruce welcomes inquiries, comments, and questions. He can be reached by contacting The Fenton Report.