Defending Janice Rogers Brown
The New York Times reports today that Senate Majority Leader Bill Frist will attempt to break the Senate Democrats' judicial filibuster of Priscilla Owen and Janice Rogers Brown. Stuart Taylor of the National Journal points out the obvious in his latest column : it's all about politics. He does a rather good job of assessing the pitfalls of going to the mat on both sides of the aisle, invoking the hallmark virtue of the United States Senate -- compromise.
Earlier this month, I responded to a highly negative piece authored by Mr. Taylor, arguing that Justice Brown may be too radical of an appointment for the President. At issue: Lochner and the use of substantive due process in equal protection cases. Once again, it appears that recognition of property rights is viewed as a juridical liabilty -- an orientation that is so skewed that it demonstrates the excruciatingly jaundiced nature of the current practice of American law.
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Dear Sir --
After I read your article on Justice Brown, I felt compelled to point out that Justice Brown's purportedly apocryphal visions of the post-Lochner era in constitutional law were incompletely addressed. Brown's opinions should take precedence over extraneous speeches to law students and libertarian public interest litigators. Regarding Lochner, her dissent in Santa Monica Beach, Ltd. v. Superior Court, 19 Cal. 4th 952 (1999) deserved far more than a passing mention. Pay particular attention to footnote 2:
Lochner (Lochner v. New York (1905) 198 U.S. 45) is the name that has come to symbolize judicial usurpation of power. But the problem with Lochner was not that it sought to make judicial review meaningful or that it deemed economic interests worthy of protection. The Lochner court was justly criticized for using the due process clause "as though it provided a blank check to alter the meaning of the Constitution as written." (Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663, 675.). The "revolution of 1937" ended the era of economic substantive due process but it did not dampen the court's penchant for rewriting the Constitution. Although the court left the protection of property interests largely to the mercy of legislatures, it continued to apply substantive due process to the protection of civil liberties. "As several of the Justices have noted in dissent, there is only a verbal difference between the 'fundamental rights' branch of the compelling governmental interest test and the now discredited substantive due process doctrine of such cases as Lochner. . . . Both of them leave the Court entirely at large, with full freedom to enact its own natural law conceptions. The only difference is in the type of interests that are protected . . . ." (Lusky, By What Right? (1975) p. 266, fns. omitted.)
In that dissent, Justice Brown also looked at the unfortunate dichotomy between interests that are routinely judicially cognizable ("liberty") and those that are less so ("property"):
Indeed, the ownership of property is itself an aspect of liberty. "Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a 'personal' right . . . . [A] fundamental interdependence exists between the personal right to liberty and the personal right [to] property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized. J. Locke, Of Civil Government 82-85 (1924) . . . ." (Lynch v. Household Finance Corp. (1972) 405 U.S. 538, 552.)
Nevertheless, in the aftermath of Lochner and its progeny, the federal high court articulated such a hierarchy, relegating economic rights to a decidedly inferior status. This has resulted in a judicial review not merely deferential but actually nonexistent. The rational basis test--a standard of review which allows legislative action to stand if the court can hypothesize any perfunctory justification for it--is as bad in its own way as substantive due process. Neither approach finds support in the constitutional text.
If the "radical libertarian brand of judicial activism" alluded to in your column means affording property interests some degree of protection from untrammeled legislative plunder, then I fail to see the great danger posed by it. The current Court's so-called New Judicial Federalism -- branded as "radical" by critics -- is a modest constraint upon the supra-constitutional exercise of Congressional power under the Commerce Clause. If anything, a little principled radicalism is called for in our appellate courts, where there is an institutional gravity toward comity for its own sake.
One of the prevailing themes in Justice Brown's jurisprudence is her advocacy of "means-end scrutiny" that tries to find a workable third way between rational basis and strict scrutiny in equal protection cases. This was first forwarded in by Professor Gerald Gunther over thirty years ago (see Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection (1972) 86 Harv. L.Rev. 1), and used by the majority in the Nollan and Dolan property rights cases.
In the future, I invite you look the following cases where her adoption of "means scrutiny" or "rational basis with bite" was utilized contexts other than property: Kasler v. Lockyer, 23 Cal. 4th 472 (2000) (her majority opinion upheld Roberti-Roos Assault Weapons Control Act on rational basis equal protection review (in part), her concurring opinion critical of current equal protection jurisprudence); Warden v. State Bar of California, 21 Cal. 4th 628 (1999) (dissent re. California’s Mandatory Continuing Legal Education program that exempted some active bar members from participation, calling for more reliance on state constitutional requirements pertaining to privileges and immunities and uniform operation of law).
Three other cases that come to mind when assessing Justice Brown's work product:
(1) People v. Robertson, 34 Cal. 4th 156 (2004) -- dissenting opinion where she called for the abandonment of the common law second-degree felony-murder rule in California.
(2) People v. Floyd, 31 Cal. 4th 179 (2003) -- dissenting opinion calling for the rule of lenity for a nonviolent drug possession defendant under the Substance Abuse and Crime Prevention Act of 2000.
(3) Aguilar v. Avis Rent A Car Sys., 21 Cal. 4th 121 (1999) -- dissenting opinion where she criticized her colleagues for carving out a "Fair Employment and Housing Act exception to the First Amendment," featuring the following observation: "One of the truths we hold to be self-evident is that a government that tells its citizens what they may say will soon be dictating what they may think. But in a country that puts such a high premium on freedom, we cannot allow ourselves to be the captives of orthodox, culturally imposed thinking patterns. Indeed, I can conceive no imprisonment so complete, no subjugation so absolute, no debasement so abject as the enslavement of the mind."
Finally, as to the overarching question as the proper role of judges in assessing legislative enactments that touch "hard" questions, the following excerpt from Justice Brown's dissent in American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997) is entirely on point:
Courts must speak with clarity and precision when the available tools are adequate to the task at hand, but when the claim at issue involves fundamentally moral and philosophical questions as to which there is no clear answer, courts must remain tentative, recognizing the primacy of legislative prerogatives. The temptation always exists for judges to "wrap up their veto" of a legislative policy in a "protective veil of adjectives such as . . . 'reasonable,' 'inherent,' [or] 'fundamental,' . . . whose office usually, though quite innocently, is to disguise what they are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision." (Hand, The Bill of Rights (Harv.U. Press 1958) p. 70.) Whether judges act innocently or deliberately, the harm to the body politic is the same. The very real danger we face when "courts foreclose ordinary politics in one area after another" is that the "democratic elements in our republican experiment will wither away, while new forms of tyranny by the powerful few arise." (Scalia, Comment by Glendon in A Matter of Interpretation (Princeton U. Press 1997) p. 113.) "WHOM SHOULD WE FEAR MORE: an aroused populace, or the vanguard who know better than the people what the people should want?" (Ibid.)
The danger is most acute when the language to be interpreted is amorphous, vague, or general enough to provide broad scope for judicial policymaking and the court insists on creating its own standard, untethered to either the language, as used by its authors or, in the case of a constitution, the apparent intent of those who ratified it. The word "privacy" as used in the California Constitution, for example, has a meaning which can easily be derived from its history, context, and text. The controlling opinion reads this history backwards to infuse "privacy" with a meaning it did not clearly possess at the time of its enactment. As Jefferson warned us, "Laws are made for men of ordinary understanding, and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties, which may make anything[] mean everything or nothing, at pleasure." (15 The Writings of Thomas Jefferson (Lipscomb edit. 1903) p. 450.)
Justice Brown's view of the federal government as a "leviathan... crushing everything in its path" is most definitely not in accord President Bush's larger statist policy agenda, which has perpetuated a "conservative" welfare-warfare state to an extraordinary degree. Still, she has not been poison to big-government conservatives in the past: the tax-hiking, spendthrift Governor Pete Wilson found her more than suitable when he appointed her to the California Supreme Court almost a decade ago.
Justice Brown's ability to traverse the political waters with dignity -- e.g., she called her contentious hearings before the California Judicial Nomination Evaluation Committee in 1996 "a good opportunity for character development" -- while also maintaining her intellectual integrity is refreshingly laudable. Which may make her entirely unsuitable for anything having to do with the Beltway.
Earlier this month, I responded to a highly negative piece authored by Mr. Taylor, arguing that Justice Brown may be too radical of an appointment for the President. At issue: Lochner and the use of substantive due process in equal protection cases. Once again, it appears that recognition of property rights is viewed as a juridical liabilty -- an orientation that is so skewed that it demonstrates the excruciatingly jaundiced nature of the current practice of American law.
+ + + + +
Dear Sir --
After I read your article on Justice Brown, I felt compelled to point out that Justice Brown's purportedly apocryphal visions of the post-Lochner era in constitutional law were incompletely addressed. Brown's opinions should take precedence over extraneous speeches to law students and libertarian public interest litigators. Regarding Lochner, her dissent in Santa Monica Beach, Ltd. v. Superior Court, 19 Cal. 4th 952 (1999) deserved far more than a passing mention. Pay particular attention to footnote 2:
Lochner (Lochner v. New York (1905) 198 U.S. 45) is the name that has come to symbolize judicial usurpation of power. But the problem with Lochner was not that it sought to make judicial review meaningful or that it deemed economic interests worthy of protection. The Lochner court was justly criticized for using the due process clause "as though it provided a blank check to alter the meaning of the Constitution as written." (Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663, 675.). The "revolution of 1937" ended the era of economic substantive due process but it did not dampen the court's penchant for rewriting the Constitution. Although the court left the protection of property interests largely to the mercy of legislatures, it continued to apply substantive due process to the protection of civil liberties. "As several of the Justices have noted in dissent, there is only a verbal difference between the 'fundamental rights' branch of the compelling governmental interest test and the now discredited substantive due process doctrine of such cases as Lochner. . . . Both of them leave the Court entirely at large, with full freedom to enact its own natural law conceptions. The only difference is in the type of interests that are protected . . . ." (Lusky, By What Right? (1975) p. 266, fns. omitted.)
In that dissent, Justice Brown also looked at the unfortunate dichotomy between interests that are routinely judicially cognizable ("liberty") and those that are less so ("property"):
Indeed, the ownership of property is itself an aspect of liberty. "Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a 'personal' right . . . . [A] fundamental interdependence exists between the personal right to liberty and the personal right [to] property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized. J. Locke, Of Civil Government 82-85 (1924) . . . ." (Lynch v. Household Finance Corp. (1972) 405 U.S. 538, 552.)
Nevertheless, in the aftermath of Lochner and its progeny, the federal high court articulated such a hierarchy, relegating economic rights to a decidedly inferior status. This has resulted in a judicial review not merely deferential but actually nonexistent. The rational basis test--a standard of review which allows legislative action to stand if the court can hypothesize any perfunctory justification for it--is as bad in its own way as substantive due process. Neither approach finds support in the constitutional text.
If the "radical libertarian brand of judicial activism" alluded to in your column means affording property interests some degree of protection from untrammeled legislative plunder, then I fail to see the great danger posed by it. The current Court's so-called New Judicial Federalism -- branded as "radical" by critics -- is a modest constraint upon the supra-constitutional exercise of Congressional power under the Commerce Clause. If anything, a little principled radicalism is called for in our appellate courts, where there is an institutional gravity toward comity for its own sake.
One of the prevailing themes in Justice Brown's jurisprudence is her advocacy of "means-end scrutiny" that tries to find a workable third way between rational basis and strict scrutiny in equal protection cases. This was first forwarded in by Professor Gerald Gunther over thirty years ago (see Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection (1972) 86 Harv. L.Rev. 1), and used by the majority in the Nollan and Dolan property rights cases.
In the future, I invite you look the following cases where her adoption of "means scrutiny" or "rational basis with bite" was utilized contexts other than property: Kasler v. Lockyer, 23 Cal. 4th 472 (2000) (her majority opinion upheld Roberti-Roos Assault Weapons Control Act on rational basis equal protection review (in part), her concurring opinion critical of current equal protection jurisprudence); Warden v. State Bar of California, 21 Cal. 4th 628 (1999) (dissent re. California’s Mandatory Continuing Legal Education program that exempted some active bar members from participation, calling for more reliance on state constitutional requirements pertaining to privileges and immunities and uniform operation of law).
Three other cases that come to mind when assessing Justice Brown's work product:
(1) People v. Robertson, 34 Cal. 4th 156 (2004) -- dissenting opinion where she called for the abandonment of the common law second-degree felony-murder rule in California.
(2) People v. Floyd, 31 Cal. 4th 179 (2003) -- dissenting opinion calling for the rule of lenity for a nonviolent drug possession defendant under the Substance Abuse and Crime Prevention Act of 2000.
(3) Aguilar v. Avis Rent A Car Sys., 21 Cal. 4th 121 (1999) -- dissenting opinion where she criticized her colleagues for carving out a "Fair Employment and Housing Act exception to the First Amendment," featuring the following observation: "One of the truths we hold to be self-evident is that a government that tells its citizens what they may say will soon be dictating what they may think. But in a country that puts such a high premium on freedom, we cannot allow ourselves to be the captives of orthodox, culturally imposed thinking patterns. Indeed, I can conceive no imprisonment so complete, no subjugation so absolute, no debasement so abject as the enslavement of the mind."
Finally, as to the overarching question as the proper role of judges in assessing legislative enactments that touch "hard" questions, the following excerpt from Justice Brown's dissent in American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307 (1997) is entirely on point:
Courts must speak with clarity and precision when the available tools are adequate to the task at hand, but when the claim at issue involves fundamentally moral and philosophical questions as to which there is no clear answer, courts must remain tentative, recognizing the primacy of legislative prerogatives. The temptation always exists for judges to "wrap up their veto" of a legislative policy in a "protective veil of adjectives such as . . . 'reasonable,' 'inherent,' [or] 'fundamental,' . . . whose office usually, though quite innocently, is to disguise what they are doing and impute to it a derivation far more impressive than their personal preferences, which are all that in fact lie behind the decision." (Hand, The Bill of Rights (Harv.U. Press 1958) p. 70.) Whether judges act innocently or deliberately, the harm to the body politic is the same. The very real danger we face when "courts foreclose ordinary politics in one area after another" is that the "democratic elements in our republican experiment will wither away, while new forms of tyranny by the powerful few arise." (Scalia, Comment by Glendon in A Matter of Interpretation (Princeton U. Press 1997) p. 113.) "WHOM SHOULD WE FEAR MORE: an aroused populace, or the vanguard who know better than the people what the people should want?" (Ibid.)
The danger is most acute when the language to be interpreted is amorphous, vague, or general enough to provide broad scope for judicial policymaking and the court insists on creating its own standard, untethered to either the language, as used by its authors or, in the case of a constitution, the apparent intent of those who ratified it. The word "privacy" as used in the California Constitution, for example, has a meaning which can easily be derived from its history, context, and text. The controlling opinion reads this history backwards to infuse "privacy" with a meaning it did not clearly possess at the time of its enactment. As Jefferson warned us, "Laws are made for men of ordinary understanding, and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties, which may make anything[] mean everything or nothing, at pleasure." (15 The Writings of Thomas Jefferson (Lipscomb edit. 1903) p. 450.)
Justice Brown's view of the federal government as a "leviathan... crushing everything in its path" is most definitely not in accord President Bush's larger statist policy agenda, which has perpetuated a "conservative" welfare-warfare state to an extraordinary degree. Still, she has not been poison to big-government conservatives in the past: the tax-hiking, spendthrift Governor Pete Wilson found her more than suitable when he appointed her to the California Supreme Court almost a decade ago.
Justice Brown's ability to traverse the political waters with dignity -- e.g., she called her contentious hearings before the California Judicial Nomination Evaluation Committee in 1996 "a good opportunity for character development" -- while also maintaining her intellectual integrity is refreshingly laudable. Which may make her entirely unsuitable for anything having to do with the Beltway.
posted by Nikos A. Leverenz @ 10:54 AM
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