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.