As a small business person, you probably haven’t thought much about the hubbub happening over the confirmation of a Supreme Court Justice. After all, you’re almost certainly never going to have a case before the Supreme Court. Though some Supreme Court decisions may affect social issues you care about or laws involving large corporate interests, Supreme Court business decisions rarely directly affect small businesses.
So why should you pay attention, let alone care, that some Republican members of the US Senate, led by Senate Majority Leader Mitch McConnell, have vowed to block any confirmation hearing on President Obama’s nominee, Merrick Garland, to serve on the highest court in the land? Why should it bother you if the Senate refuses to provide the “advice and consent” required by the Constitution?
You should care. Because all businesses—small business and large enterprises—depend on a working, respected, court system. Your business does too, even if you never, ever go to court.
Here is one indisputable fact about business life: we all depend on contracts. Very little business is conducted with just a handshake. Think for a moment if you didn’t know how any contract you wrote would be interpreted or enforced. How hard would it be for you to run your small business then?
Even if we, as business owners, never step inside a court room, the fact that responsible, respected courts exist gives every contract we enter into meaning. Court decisions and precedent help guide our business decisions.
Soon after the Soviet Union collapsed, I had a friend, a venture capitalist, who opened an office to invest in new companies in a former Soviet country. It seemed like very fertile ground—a huge market, open to capitalism for the first time in nearly a century, pent-up demand for consumer goods.
After about a year, my friend’s firm closed their office. Why? No reliable court system had yet been established. While some laws were enacted, there was no history of court decisions by which laws could be interpreted and business decisions made. There was no judicial “precedent.” No case law. They couldn’t invest in new companies. They couldn’t make large purchases. They couldn’t conduct business.
When courts don’t work, business doesn’t work. If you’re a small business person, you depend on contracts and the judicial system silently standing behind such contracts.
With my first book contract, I just wanted to get published. I didn’t want to make a fuss over a contract. But my lawyer insisted on a few, reasonable clauses – one of which was outlining how quickly my publisher had to make payments. Nearly a decade later, my small publisher abrogated his contract. I ended up in mediation, not in court, during which my publisher’s lawyer—not mine—warned him how the courts would deal with him, based on precedent. He settled.
That’s why responsible businesses hate judicial “activism.” Businesses love “precedent.” Precedent is what gives meaning to terms and clauses in contracts. Precedent avoids conflicts.
Sure, the biggest corporate interests may want judicial activists who will gut consumer protections. And sure, the most vociferous social activists want judicial activists who will bend laws to their ideals of social norms. But responsible, thoughtful business people want thoughtful, smart judges who respect precedent, are impartial, hold reverence for the law above any political position or personal agenda.
Merrick Garland might not be my choice for Supreme Court Justice. He might not be yours. But he is eminently qualified for the position. Even Republicans who have vowed to block a hearing on his appointment now have praised him in the past. One of the comments made about Garland most frequently is to note his deference towards precedent, that he is a model of “judicial restraint.”
Holding up a Supreme Court nomination for nearly a year means decisions aren’t made. Laws are unclear. Refusing to even consider judges that both sides recognize as highly qualified not only further politicizes the judiciary, it keeps qualified individuals from wanting to serve as judges.
The current effort to block even considering the appointment of a Supreme Court Justice dramatically undercuts respect for the Supreme Court in particular, and for the judicial system in general. And that’s bad for business, even small business.
Copyright, Rhonda Abrams, 2016
This article originally ran in USA Today on March 25, 2016