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Does the President Agree With This Nominee?

National Journal
May 2, 2005
Stuart Taylor, Jr.


California Supreme Court Justice Janice Rogers Brown is the most interesting of President Bush's judicial nominees blocked by Democratic filibusters. So a look at her speeches and judicial opinions may shed light on what the fuss is all about.

An Alabama sharecropper's daughter who attended segregated black schools, Brown is a smart, self-made, independent-minded, public-spirited judge who has won high praise from some colleagues. Much like Justice Clarence Thomas, another child of the segregated South, Brown is a cogent critic of racial profiling and of racial-preference programs, and has been savaged by advocates of preferences. With her gift for vivid expression, she would add spice to the nation's second-most-powerful court, the U.S. Court of Appeals for the District of Columbia Circuit, which has the last word on the legality of many federal environmental, health, and safety regulations.

But spice is not all that she would add. What's most striking about this nomination is the question why Bush wants to add to this, of all courts, a person who has:

  • Expressed approval of constitutional theories that might well (as I read them) doom Bush's own signature Medicare prescription drug benefit and proposed Social Security "personal accounts," along with the rest of the Medicare and Social Security programs and many workplace safety and environmental laws.
  • Denounced as "the triumph of our own socialist revolution" the 1937 Supreme Court decisions upholding the Social Security Act, the National Labor Relations Act, other key New Deal programs, and state minimum-wage laws, while likening those decisions to the bloody Russian Revolution of 1917.
  • Called for the Supreme Court to return to its pre-1937 pattern of sweeping away many federal and state economic regulations by imposing severe limits on Congress's power to regulate interstate commerce and by reviving long-dead precedents such as Lochner v. New York, a now-infamous 1905 decision that conservative legal hero Robert Bork (among many others) has denounced as an "abomination."
  • Portrayed the federal government as a "leviathan" that is "crushing everything in its path" and fostering "a debased, debauched culture which finds moral depravity entertaining and virtue contemptible."
  • Declared that "in the heyday of liberal democracy, all roads lead to slavery. And we no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is ... the drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens." And senior citizens, Brown has said, "blithely cannibalize their grandchildren [to] get as much 'free' stuff as the political system will permit them to extract."




These and other comments, in two speeches delivered five years ago, show Brown to be a passionate advocate of a radical, anti-regulatory vision of judicially enforced property rights far more absolute than can be squared with the Supreme Court precedents with which judges are supposed to comply.

To be sure, in her October 2003 confirmation testimony, Brown pledged (as do all judicial nominees) to follow established law, even when she disagrees with it. She also said that her speeches had been misunderstood, that she would not really pursue the Lochner approach, and that she should be evaluated by her judicial opinions.

So let's take a closer look at Brown's speeches about (among other things) Lochner, which the Court overruled in 1937 and has often condemned since, and at one of her more controversial judicial opinions.

Some background: What lawyers call "Lochnerism" was the basis for dozens of decisions striking down minimum-wage, maximum-hours, and other worker-protection laws as infringing "freedom of contract" -- a right that, as Bork has put it, can be found "nowhere in the Constitution." Almost all modern constitutional scholars have rejected Lochnerism as "the quintessence of judicial usurpation of power," in Bork's words.

Indeed, leading conservatives -- including Justice Antonin Scalia, Sen. Orrin Hatch, R-Utah, and former Attorney General Edwin Meese, as well as Bork, together with some liberal advocates of judicial restraint -- have long condemned Lochner as the main doctrinal precursor of Roe v. Wade's invention (in 1973) of a sweeping "constitutional" abortion right unmentioned in the Constitution.

As Scalia has explained, what has so "discredited" Lochner -- even in the view of many free-market libertarians who share the Lochner Court's disapproval as a policy matter of many regulatory laws -- is the modern near-consensus that unelected justices have no mandate "to impose a particular economic philosophy upon the Constitution." Justice Oliver Wendell Holmes Jr. made the same point in his Lochner dissent (referring to the leading advocate of social Darwinism): "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics."

But in an April 2000 speech, Brown declared that Holmes "was simply wrong"; that his Lochner dissent "has annoyed me"; and that the post-1936 Supreme Court has yielded to "a kind of underground collectivist mentality" in rejecting Lochnerism and upholding New Deal programs.

Brown herself had criticized Lochner in a 1999 dissent. But in an August 2000 speech, she said she had come to "a new understanding of (or at least a new way of thinking about) the judicial role. As a conservative judge, I initially accepted the conventional wisdom [about Lochner].... You all know the drill.... 'Lochnerism' is the strongest pejorative known to American law. [But] even conservative 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." Unless judges enforce these "extra-constitutional" rights, she said, "a democracy is inevitably transformed into a kleptocracy -- a license to steal, a warrant for oppression."

After she had studied "our early history," Brown added, "it slowly dawned on me that the problem may not be judicial activism." Rather, she said, the problem was the courts' unwillingness since 1937 to enforce a broad, Lochneresque vision of property rights based less on the explicit text of the Constitution than on "natural law."

Brown's judicial opinions are less fiery than her speeches -- although sometimes strikingly acerbic -- and some of them are impressive and admirable, in my view. But her urge to impose a radically expanded view of property rights sometimes shows through, especially in several lone dissents from decisions upholding rent-control laws and other regulatory restrictions on the use of private property.

In San Remo Hotel v. San Francisco, in 2002, for example, the majority upheld an affordable-housing law's requirement in that city that owners pay a fee to demolish or change the use of residential hotels. In dissent, Brown wrote that "property ownership is the essential prerequisite of liberty" and that the city had engaged in "theft" and "turn[ed] a democracy into a kleptocracy." Criticizing the Supreme Court's "labyrinthine and compartmentalized" case law on the Constitution's requirement of "just compensation" for governmental "takings" of private property, she called for a new "conceptual approach" that would invalidate laws redistributing wealth from one group to another. She also cited with approval a 1985 book, Takings: Private Property and the Power of Eminent Domain. The author, Richard Epstein, has said that his theory would "invalidate much ... 20th-century legislation."

Brown's majority colleagues responded that "nothing in the law of takings would justify an appointed judiciary in imposing [any] personal theory of political economy on the people of a democratic state."

Brown is not alone in her embrace of a radical libertarian brand of judicial activism. A number of conservative-libertarian law professors, public-interest activists, and other thinkers have long expressed similar views. This group is ranged toward the right fringe of the legal-political spectrum, just as the remaining exponents of radical redistributionist and Marxist theories are ranged toward the left fringe.

Such unconventional thinkers play vital roles in our intellectual life. But do the ones who are also passionate partisans of inventing constitutional rights unmentioned in the Constitution belong on the bench? How would Republicans react if a Democratic president nominated an advocate of radical redistribution of wealth or Marxism?

Senate Democrats thus have good reason to oppose Brown. Are they also justified in denying her a vote? Probably not -- unless and until Brown is nominated for the Supreme Court, where she would be unrestrained by the risk of reversal on appeal.

But the biggest question about this Bush-nominated advocate of judicial legislation is the one posed in a September 2003 op-ed by liberal critics Douglas Kendall and Timothy Dowling: Where is the conservative outrage?

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-- Stuart Taylor Jr. is a senior writer and columnist for National Journal magazine, where "Opening Argument" appears. His e-mail address is staylor@nationaljournal.com.

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