How Scalia And Company Are Setting a Bad Example for Conservative Judges

The law, lawyers, and the court.
April 18 2012 6:56 PM

The Supreme Court’s Bad Precedent

Conservative judges increasingly feel free to inject ideology into their decisions. Don’t just look at what they say, but how they say it.

Judge Janis Rogers Brown.
Justice Janice Rogers Brown testifies before the Senate Judiciary full committee hearing on the nomination of Janice Brown to be U.S. circuit judge for the District of Columbia Circuit.

Photograph by Douglas Graham/Roll Call/Getty Images.

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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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).

Advertisement

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.”

TODAY IN SLATE

Doublex

Crying Rape

False rape accusations exist, and they are a serious problem.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

The Music Industry Is Ignoring Some of the Best Black Women Singing R&B

How Will You Carry Around Your Huge New iPhone? Apple Pants!

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

Television

The Other Huxtable Effect

Thirty years ago, The Cosby Show gave us one of TV’s great feminists.

Lifetime Didn’t Find the Steubenville Rape Case Dramatic Enough. So They Added a Little Self-Immolation.

No, New York Times, Shonda Rhimes Is Not an “Angry Black Woman” 

Brow Beat
Sept. 19 2014 1:39 PM Shonda Rhimes Is Not an “Angry Black Woman,” New York Times. Neither Are Her Characters.
Behold
Sept. 19 2014 1:11 PM An Up-Close Look at the U.S.–Mexico Border
  News & Politics
Weigel
Sept. 19 2014 9:15 PM Chris Christie, Better Than Ever
  Business
Moneybox
Sept. 19 2014 6:35 PM Pabst Blue Ribbon is Being Sold to the Russians, Was So Over Anyway
  Life
Inside Higher Ed
Sept. 19 2014 1:34 PM Empty Seats, Fewer Donors? College football isn’t attracting the audience it used to.
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
  Arts
Brow Beat
Sept. 19 2014 4:48 PM You Should Be Listening to Sbtrkt
  Technology
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Medical Examiner
Sept. 19 2014 5:09 PM Did America Get Fat by Drinking Diet Soda?   A high-profile study points the finger at artificial sweeteners.
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.