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Janice Rogers Brown & Lochner

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 Lochnerism-lite."

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 for decades.

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.

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