The Bush administration's decision to nominate Janice Rogers
Brown to the nation's second most important court, the U.S.
Court of Appeals for the D.C. Circuit, raises a seemingly
paradoxical question: Where is the conservative outrage?
After all, Brown, a California Supreme Court justice, openly
supports a return to the era of Lochner v. New York,
the 1905 case in which a state statute that attempted to impose
a maximum-hours limitation on bakers was struck down as an
unconstitutional infringement of liberties protected by the
14th Amendment. In the Lochner era, the Supreme Court
invalidated scores of federal and state statutes designed
to improve working conditions during the Progressive Era and
jump-start the economy out of the Great Depression. While
arguments abound over what is and is not judicial activism,
virtually everyone agrees on this: Lochner is a paradigmatic
example of inappropriate judicial overreaching.
Deemed an "abomination" by Robert Bork, Lochner
often is described as the most widely reviled decision of
the past 100 years. The reason conservatives hate Lochner
is not its results; many conservatives support the free-market
social Darwinism advanced by the Lochner-era court.
Rather, conservatives reject Lochner because it epitomizes
the worst type of judging. As explained by former attorney
general Edwin Meese III, "the Court in the Lochner
era ignored the limitations of the Constitution and blatantly
usurped legislative authority." Senate Judiciary Committee
Chairman Orrin Hatch (R-Utah), in describing the perils of
an activist judiciary, has placed Lochner in the company
of the infamous Dred Scott ruling, which legitimized
the spread of slavery and helped provoke the Civil War.
Conservatives point to their dislike for Lochner as
Exhibit A in explaining why they ought to be trusted in judicial
selection. For example, in responding to the criticism that
presidents Ronald Reagan and George H. W. Bush were using
judicial appointments to advance the conservative political
agenda, Meese declared that "to both Chief Executives
the activist Court of the Lochner era was as illegitimate
as the Warren Court."
Justice Brown herself acknowledges how far out-of-sync her
views are with mainstream conservative legal thinking. She
has written that she "initially accepted the conventional
wisdom" that the doctrine used in Lochner was
"a myth invented by judicial activists that were up to
no good," and that "Lochnerism is the strongest
pejorative known to American law." Brown now rejects
that conventional wisdom, however, and she chides conservatives
for their "dread" of judicial activism. In her words,
it "dawned on me that the problem may not be judicial
activism. The problem may be the world view -- amounting to
altered political and social consciousness -- out of which
judges now fashion their judicial decisions."
In a nutshell, Brown believes that there is good judicial
activism and bad judicial activism, and the Lochner court's
activism was good because it advanced the economic policy
preferences of certain Framers. The problem for Brown, and
the Lochner court, is that these preferences did not
make it into the Constitution's text. As Justice Antonin Scalia
stated for the Supreme Court four years ago, Lochner
is discredited because it "sought to impose a particular
economic philosophy upon the Constitution." Brown rejects
this criticism of Lochner as "simply wrong."
Brown's judicial opinions evidence a zeal for imposing her
idiosyncratic views in spite of contrary precedent. For example,
in a 2001 case, San Remo Hotel v. San Francisco, Brown's
lone dissent calls for a dramatic expansion of the Constitution's
takings clause to strike down an affordable-housing law. The
majority responded that "nothing in the law of takings
would justify an appointed judiciary in imposing [its] personal
theory of political economy on the people of a democratic
The last judicial nominee who openly yearned for a return
to the Lochner era was a California law professor named
Bernard Siegan. Past here should be prologue. Siegan, nominated
by Ronald Reagan in 1988 for the 9th U.S. Circuit Court of
Appeals, was one of only four Reagan judicial nominees rejected
by the U.S. Senate.
Republicans have angrily denounced the Democrats' use of filibusters
to block several of President Bush's judicial nominations.
In Brown's case, if the conservatives on the Senate Judiciary
Committee hold true to conservative dogma, such countermajoritarian
tactics will not be necessary. No senator would vote for a
nominee who declares that Dred Scott was correctly
decided. The same rule should apply for Lochner.
Douglas T. Kendall is executive director and Timothy J.
Dowling chief counsel of Community Rights Counsel, a public
interest law firm.