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
- 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
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
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
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?
-- Stuart Taylor Jr. is a senior writer and columnist for
National Journal magazine, where "Opening Argument"
appears. His e-mail address is firstname.lastname@example.org.