Judicial Activism: Right Wing Edition

Judge Janice Rogers Brown

Whatever disappointments the left may have with President Obama, it must be understood how devastating a Romney Presidency would be in terms of the Supreme Court (and lower federal courts) and the preservation of fundamental rights, liberties and democratic principles.  (See Supreme Court Matters; Romney Gets Borked.)  

Janice Rogers Brown was an extreme right wing justice on a very right wing California Supreme Court from 1997 to 2005, when she was appointed to the U.S. Court of Appeals for the D.C. Circuit by President Bush, where she currently sits.  Rogers Brown, who has been known to trumpet Ayn Rand and decry Supreme Court decisions upholding the New Deal as "the triumph of our own socialist revolution," is precisely the kind of judge likely to be nominated by the next Republican president.  Professor Adam Winkler cites a recent Brown opinion to illustrate why this should scare us into action.   -- Lovechilde

Startling Conservative Judicial Opinion Should Motivate Progressives

By Adam Winkler, cross-posted from American Constitution Society

The age of judicial activism - err, I mean "judicial engagement" - is upon us. Having realized that they don't always win with voters, leading conservatives are abandoning their traditional emphasis on judicial restraint and respect for the decisions of democratically elected officials. After years of berating liberal judges for overturning laws in the name of controversial constitutional principles, conservatives are now embracing the notion of an active, "engaged" judiciary.  Only they want one that aggressively protects those rights conservatives prefer: property rights, rights of religious expression, the liberty of contract, the right not to buy broccoli - regardless of decades of established case law.

For evidence of this trend, one need not look further than startling concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, who is often mentioned as a potential Supreme Court nominee in a Republican administration, used her opinion to audition for a leadership role in this new movement. The time has come, she wrote, to end the pernicious practice of allowing legislatures to regulate the economy. "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." The proof? 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 the public welfare."

Besides Brown’s Bizarro world premises in which things like consumer protection laws harm consumers, her ode to the Lochner era reminds us of the importance of judicial appointments. For decades, Republican presidents have used the lower federal courts as a farm team for the Supreme Court, smartly filling positions with potential stars to see how they perform. This is a smart strategy, though one Democrats haven’t followed. Instead, Democratic presidents have tended to name competent, diverse people who aren’t likely to be controversial. But in the current political climate, even these clear consensus nominees are held up in the Senate, leaving the federal courts with a critical number of vacancies and a troubling imbalance in our courts. To counter the newly “engaged” judicial conservatives like Brown, legal liberals need to be fighting for judges, particularly those judges with the intellectual fortitude to go toe-to-toe with the leading lights of conservative constitutionalism. Respect for our Constitution and settled precedent demands nothing less.