Judge Roberts disturbed many commentators around the political spectrum by waxing slightly philosophical in one decision:
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).
reason magazine’s judicial watcher Damon Root defended Brown: I happen to think that Judge Brown is correct about the Supreme Court’s shameful mistreatment of economic liberty over the past eight decades, so maybe Brown’s concurrence didn’t offend me for political reasons. But then again, I also can’t imagine being particularly offended if a left-leaning federal judge used the occasion of a gun control case to rail against the Supreme Court’s 2008 decision in D.C. v. Heller (which I think was decided correctly), while at the same time acknowledging that she was duty-bound as a lower court judge to follow the Court’s Heller precedent.
As long as lower-court judges aren’t flat-out disobeying the Supreme Court, what’s wrong with pointing a few rhetorical barbs in the Court’s general direction?
President George W. Bush nominated her to her current position in 2003. However, her nomination was stalled in the U.S. Senate for almost two years because of Democratic opposition. She began serving as a federal appellate court judge on June 8, 2005.§
Brown has said that when she was young, she was so liberal in her politics that she was almost Maoist.
For most of the first two decades of her career, Brown worked for government agencies. She was Deputy Legislative Counsel for the Office of Legislative Counsel in California from 1977 to 1979. She then spent eight years as Deputy Attorney General for the Criminal and Civil Divisions of the California Attorney General‘s Office. She was Deputy Secretary and General Counsel for California’s Business, Transportation, and Housing Authority from 1987 to 1989 (and a University of the Pacific McGeorge School of LawAdjunct Professor from 1988 to 1989).
She briefly entered private practice as an Associate of Nielsen, Merksamer, Parrinello, Mueller & Naylor from 1990 to January 1991, when she returned to government as Legal Affairs Secretary for Governor Pete Wilson from January 1991 to November 1994. The job included diverse duties, ranging from analysis of administration policy, court decisions, and pending legislation to advice on clemency and extradition questions. The Legal Affairs Office monitored all significant state litigation and had general responsibility for supervising departmental counsel and acting as legal liaison between the Governor’s office and executive departments. In November 1994, Wilson appointed Brown to theCalifornia Court of Appeal, Third Appellate District. Prior to this appointment she was rated “not qualified” by the State Bar of California Judicial Nominee Committee due to lack of experience.
In May 1996, Governor Pete Wilson appointed Brown as Associate Justice to the California Supreme Court. Before the appointment, she had been rated “not qualified” by theState Bar of California‘s Commission on Judicial Nominees Evaluation, which evaluates nominees to the California courts. She was the first person with that rating to be appointed. The basis of that negative rating, according to the Commission, was her lack of judicial experience. Brown had then been sitting as a Justice on the Third District Court of Appeal of California (an intermediate appellate court below the California Supreme Court) for less than two years. Brown was praised in the JNE Commission evaluation for her intelligence and accomplishments, however.
While on the California Supreme Court, in Hi-Voltage Wire-Works, Inc. v. City of San Jose, Brown wrote the majority opinion overturning a program of racial set-asides adopted by the city of San Jose, California. The opinion upheld an amendment to the California Constitution which banned “discriminat[ing] against or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” In another case, Brown dissented from an opinion striking down a parental consent law for abortions. Brown also wrote the majority opinion in Varian v. Delfino, an important First Amendmentcase involving the interpretation of California’s SLAPP statute.
She was the lone justice to contend that a provision in the California Constitution requires drug offenders be given treatment instead of jail time. In 2000, she authored the opinion in Kasler v. Lockyer, upholding the right of the State of California to ban semi-automatic firearms, and of the Attorney General of California to add to the list of prohibited weapons. Her opinion in that case clearly explained that the decision was not an endorsement of the policy, but rather recognition of the power of the state.
Brown was the second judge nominated to the D.C. Circuit by Bush and confirmed by the Senate. She began hearing federal cases on September 8, 2005.
Her libertarian political beliefs have been expressed in her speeches, most notably one she delivered to the Federalist Society at the University of Chicago Law School in 2000. Brown’s speech mentioned Ayn Rand and lamented the triumph of “the collectivist impulse”, in which capitalism receives “contemptuous tolerance but only for its capacity to feed the insatiable maw of socialism.” She argued that “where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies,” and suggests that the ultimate result for the United States has been a “debased, debauched culture which finds moral depravity entertaining and virtue contemptible”.
Her remarks gained particular attention, however, for her thesis that the 1937 court decisions upholding minimum-wage laws and New Deal programs marked “the triumph of our own socialist revolution”, the culmination of “a particularly skewed view of human nature” that could be “traced from the Enlightenment, through the Terror, to Marx and Engels, to the Revolutions of 1917 and 1937.” She called instead for a return to Lochnerism, the pre-1937 view that the Constitution severely limits federal and state power to enact economic regulations. In an exegesis of Brown’s speech that was largely responsible for bringing it to public attention during her confirmation process in 2005, legal-affairs analyst Stuart Taylor Jr. noted, “Almost all modern constitutional scholars have rejected Lochnerism as ‘the quintessence of judicial usurpation of power'”, citing in particular “leading conservatives — including Justice Antonin Scalia, Sen. Orrin Hatch, R–Utah, and former Attorney General Edwin Meese, as well as [Robert] Bork“.
In the same speech, she gave hints of her philosophical foundations. She described private property as “the guardian of every other right”. (This might have been a reference to a book published late 2007 titled “The Guardian of Every Other Right: A Constitutional History of Property Rights”.) Later in her speech she described collectivism as “slavery to the tribe” and that government was a “leviathan [that] will continue to lumber along, picking up ballast and momentum, crushing everything in its path”.