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.”