On Friday, September 19th, The Washington Post published
an opinion column by CRC's Doug Kendall and Tim Dowling that
poses the following question: Why aren't conservatives outraged
about the nomination of Janice Rogers Brown to the DC Circuit
Court of Appeals? To read the opinion column, click
here. To review the speeches discussed in the opinion
piece, click here
and here (both
are in PDF format).
In addition to the material we discuss in the op-ed,
Justice Brown's writings contain other clear evidence of her
support for a return to the Lochner era. In her April
20, 2000 speech
to the Federalist Society, she ridicules Justice Holmes's
famous dissent in Lochner as "all too famous."
In her words, "[t]hat dissent has troubled me -- has
annoyed me -- for a long time." She cites the writings
of radical legal theorist Richard Epstein as support for the
notion that judges should use their rulings to promote a Lochner
conservative economic agenda.
She criticizes West Coast Hotel Co. v. Parrish (U.S.
1937) -- which overruled Lochner -- as having "consumed
much of the classical conception of the Constitution."
She believes that the date of that ruling "marks the
triumph of our own socialist revolution," expressly comparing
the 1937 demise of the Lochner era to the Communist
takeover of Russia through the Marxist Revolution of 1917.
And she applauds three recent rulings as holding "out
the promising possibility of a revival of what might be called
Justice Brown argues that we should not dismiss the doctrine
of substantive due process for economic rights -- the doctrine
that gave rise to Lochner -- because even "judges
who take the rule of law seriously are appalled by legislative
actions which violate the whole spirit, if not quite the letter,
of provisions clearly designed to limit government."
That is to say, even if a law enacted by democratically elected
officials does not violate the Constitutional text, judges
nevertheless should strike down the law when they are sufficiently
"appalled" because the law violates some undefined
"spirit" of the Constitution. The is precisely the
kind of extra-constitutional value importation that conservatives
like Robert Bork, Edwin Meese, and Orrin Hatch have been condemning
Justice Brown acknowledges that "the idea that there
is an extra constitutional dimension to constitutional law
is heresy" among conservatives. But she insists that
"it is hubris, carelessness, and lack of candor of judges
that should concern us -- not the label active or passive."
In other words, resort to "extra constitutional"
values is legitimate, even where it constitutes judicial activism,
so long as the judge is modest, careful, and honest.
It is also telling that she delivered her August
12, 2000 speech supporting Lochner to the Institute
for Justice, a group whose leaders openly endorse conservative
judicial activism. Unlike other conservative legal groups
that purport to oppose judicial activism, the Institute for
Justice enthusiastically works to promote it, insisting that
conservative judicial activism "is not an oxymoron."
Justice Brown began her speech to the Institute for Justice
by expressing appreciation for being "in the company
of so many people who speak my language." So these were
not the idle musings of a detached academic; she was acting
as a cheerleader for true believers who want a return to Lochner
notwithstanding the near universal denunciation of Lochner
as an activist ruling.