As a business owner, you likely pay close attention to the policies advocated by each candidate on the campaign trail, thinking about how they might impact your enterprise and the economy overall. But did you know that the next president's U.S. Supreme Court picks may have a greater impact on your business than anything you hear in a stump speech?
This election cycle has given rise to some of the most divisive discourse, salacious stories and nasty campaign tactics in modern history. These stories have dominated the headlines -- leaving the Supreme Court a mere footnote. When the court does come up, it's usually in the context of hot-button social issues: marriage equality, abortion and the Second Amendment. Although these subjects are vitally important to our country, the court handles other cases that may well impact the future of your business.
The Next President's First Big Challenge: Picking A Supreme Court Nominee
The Supreme Court has been down a justice since the death of Antonin Scalia in February. President Obama's nominee to the court, Merrick Garland, has not been confirmed by the Senate. This means that, unless the Senate changes course and confirms Garland before the end of the year, one of the first major decisions the next president will make is nominating a candidate to the high court. With several justices nearing retirement, the next president may nominate three or more members to the court.
How might this affect your business? The Supreme Court regularly takes up cases that intersect with the business world. This year, however, the court is on hyperdrive when it comes to business matters. The eight-person court seems to be steering clear of many controversial social topics until a ninth justice is confirmed (with the notable exception being Gloucester County School Board v. G.G., a Virginia case about transgender rights and bathroom access). This has put business cases at the forefront of the court's docket.
What Are the Cases That Could Impact Your Business?
The cases below will be decided over the course of the court's 2016-2017 term. Beyond having significance in their own right, they are emblematic of the types of business-related cases the court may continue to examine over the coming years -- starting with the next president's Supreme Court picks.
- Merchant surcharges on credit cards. Virtually every consumer-facing business deals with credit cards. In Expressions Hair Design v. Schneiderman, the court is examining whether states can pass laws prohibiting merchants from surcharging customers who pay with credit cards. Businesses that deal in lower-priced goods and their customers will be paying particular attention to this case given its high-stakes consequences.
- Scope of intellectual property rights. Regardless of the nature of your business, chances are you deal with intellectual property issues. In the next term, the court is aggressively moving forward with several significant IP matters. The case in the limelight is Samsung v. Apple, which addresses the scope of damages in a patent infringement case. But this isn't the only big IP case on the court's docket. Star Athletica v. Varsity Brands, Inc. deals with the boundaries of copyrightable material, and Lee v. Tam deals with limits on phrases that can be trademarked. In each of these cases, the court is defining the contours of the IP laws that apply to businesses across industries.
- Banking and securities cases. Businesses intersect with the banking and securities world on a regular basis, and the court is continuing to breathe life into the laws that govern this world. In Salman v. United States, the court is examining what constitutes a "personal benefit" in the securities fraud context. In Shaw v. United States, the court will decide the level of intent required for the purpose of bank and financial institution fraud laws.
What Kind Of Justice Would A President Trump Or Clinton Nominate?
So what could the Supreme Court look like under a Trump or Clinton presidency?
In late September, Trump released a list of 21 potential nominees. Trump's list includes a variety of conservative state and federal judges, as well as U.S. Republican Senator Mike Lee, who made news for calling on Trump to "step down" as the GOP nominee less than three weeks after being named to the list. Noticeably missing from Trump's list is anyone with a core business background. Unlike other high offices, the Constitution does not require Supreme Court justices to have any prior judicial experience -- although in practice, virtually every justice has been a lawyer and most have been judges. Some theorize that if anyone would be willing to challenge convention on this front, it would be Trump. Trump squelched rumors of having Justice Steve Wynn or another business magnate on the court with his list, which pulled from names commonly floated in conservative judicial circles.
If Clinton wins, there is less certainty about her potential nominees. The first question she will face is whether she will again nominate Merrick Garland if he is not confirmed prior to her taking office. This question puts Clinton between a rock and a hard place. On one hand, she has gone on record praising Garland's experience and qualifications. On the other hand, if Clinton wins with a strong mandate and the Senate flips to Democratic control as many predict, she may want to appoint someone more progressive while she has the opportunity. Clinton didn't mention Garland's name in any of the debates -- a fact that caused some to speculate whether she's eyeing a different nominee. Thus far, Clinton has not tipped her hand on the subject, and she may well want to see how the election plays out — up and down ballot — before deciding.
The Business Of Law
Clinton or Trump? Either way, the next president's high court picks will have a profound impact on the future of important social and business issues. So think carefully before stepping into the ballot box on November 8.
