A few days ago, the U.S. Court of Appeals for the District of Columbia Circuit handed down a decision in a little-noticed case involving milk regulations, with a remarkable concurring opinion written by Judge Janice Rogers Brown. Her worldview will surprise nobody who followed Brown’s contentious confirmation to the court widely seen as a feeder to the highest court in the land. (Brown was appointed to the bench by President George W. Bush and confirmed in 2005.) She has described liberal democracy as a form of “slavery” and post-New Deal regulations as “the triumph of our socialist revolution.”As a judge on the California Supreme Court, Brown made waves with speech in 2000, a discursion on the evils of Marxism, socialism, big government, and everything about the New Deal. These views often bled into her writing at the California Supreme Court.
Brown’s opinion in this week’s Hettinga v. United States follows many of these same rhetorical pathways, calling on the U.S. Supreme Court to revisit its decades-old economic liberty jurisprudence, and put courts back in the business of regulating economic freedom as a “fundamental right.” As Brown puts it:
America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s. First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979).
Let’s put aside the extraordinary nature of Brown’s substantive argument, which holds so little regard for “democratic processes” and would gladly upend such odious regulatory regimes like child labor laws. There is a more subtle question at work here, and it’s a matter of judicial tone. The issue was raised the other day by Professor Orin Kerr, writing at the Volokh Conspiracy. As he puts it: “It is unsurprising that Judge Brown holds these views. … At the same time, I’m not convinced of the propriety of placing these views in the Federal Reporter instead of a law review or published speech. Questions of judicial propriety are matters of taste, of course. But given that these views have no obvious relevance to the job of a lower court judge, and yet resonate with certain current political movements, a decision by judges to publish such comments in a judicial opinion (even in a non-binding concurrence) runs a risk of being perceived as blending political and judicial roles.”
In short, what’s interesting about the Brown concurrence isn’t that it expresses her long-held opinion that the Supreme Court has been dead wrong about economic liberty for 80 years, and that a return to the libertarian regime of the Lochner era, is overdue. The question is why she feels comfortable injecting this language into a judicial opinion—as opposed to a speech or legal article—in a call to the court to radically reverse course and dramatically curb the power of elected officials. And while it’s not possible to know whether this incendiary concurrence was penned before or after Supreme Court’s oral arguments over the Affordable Care Act last month, it’s also very possible that some of the Tea Party rhetoric that bled into the doctrinal discussions of the health care law has opened the door to more of the “blending” of judicial and political roles. It’s hard to believe that Judge Brown wasn’t at least a little bit emboldened by the ideological tone of those arguments when she opted to embrace the same tone in her Hettinga concurrence.
Erwin Chemerinsky, dean of the law school at the University of California—Irvine, has been a longtime critic of what he sees as the unpleasant tone of Supreme Court opinion writing in general, and Justice Antonin Scalia’s caustic tone in particular. In a seminal law review article on the subject, he criticized Scalia’s tart rhetorical tone for sending “exactly the wrong message to law students and attorneys about what type of discourse is appropriate in a formal legal setting and how it is acceptable to speak to one another.” Judge Brown, of course, isn’t insulting or belittling anyone with her recent opinion. But she is embracing a starkly political and ideological tone most judges try to avoid. And it’s not unreasonable to believe that it’s a tone she saw on display—gleefully and without restraint—only a few weeks ago at the high court.
There’s one other point worth making, before we leave Judge Brown to her open-mic libertarian musings. She is, beyond any doubt, apt to appear on any short list for Mitt Romney’s choice to replace any of the four Supreme Court Justices who are currently in their 70s, some of whom will be 80 by the 2016 elections. In that light, this concurrence looks less like a judicial opinion than a job application. I have written before how ironic it is that a liberal jurist can be disqualified from a judicial confirmation hearing for expressing a single progressive idea in a law review article, whereas when it comes to conservative judicial nominees extreme and full-throated ideological exhortations are usually an added bonus. For Brown, the choice to write an opinion eviscerating New Deal worker and health protections at precisely the moment these issues are burning up cable television and Tea Party rallies is just smart politics. It’s hard to imagine a liberal shortlister attempting the same and surviving a Supreme Court confirmation bid. Or a confirmation bid of any sort, really.
At the risk of saying it again, whatever the Supreme Court’s decision regarding Obamacare in June, the net effect of the case has been to illustrate how dramatically the nation’s federal courts have shifted to the right. This shift isn’t evident only in terms of the judiciary’s willingness to embrace long-dormant libertarian ideas, but also in its willingness to wholeheartedly adopt the political language and tone in which these ideas are packaged. Liberals who don’t think of the courts as a political issue should read Judge Brown’s concurrence closely, not merely as an example of the ways partisan politics are bleeding into the federal courts, but as a warning about how radically the federal courts are poised to reshape our politics.