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Professor Rebecca L. Brown

February 8, 2012
Opponents of Health Care Law Rely on Wobbly Federalism Argument for a Reason
by Jeremy Leaming

Opponents of the Affordable Care Act’s provision that requires people who can afford it to obtain minimum health insurance coverage or pay a penalty with their annual income tax return have loudly argued that it upsets the balance between the regulatory powers of the federal government and state governments.

But in a recent piece for The Times-Picayune, a New Orleans daily, distinguished law professor at the University of Southern California Rebecca L. Brown says the federalism argument is “false.”

First she notes there is “no serious argument that health care and insurance purchasing are not economic, or that they affect purely local interests – the arguments in all prior Commerce Clause challenges.” (Indeed the Constitution’s commerce clause provides Congress the authority to regulate conduct that substantially affects interstate commerce. The health care market accounts for more than 17 percent of the U.S. economy, and everyone, at some point, participates in it or is constantly at risk of incurring substantial medical expenses.)

Opponents of the law are aware of the parameters of the commerce clause and federal court precedent surrounding it, and are actually pushing an individual-rights argument. “The Affordable Care Act challenge,” Brown writes, “powerfully evokes that libertarian tradition by arguing that the requirement to purchase health insurance invades personal decision-making.”

But that argument, Brown continues, is as wobbly as the federalism argument.

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Commerce clause, Supreme Court, Constitutional Interpretation and Change, Affordable Care Act, economy, federalism, health care insurance, Health Care Law, health care market, Health Care Reform, individual rights, minimum coverage provision, Professor Rebecca L. Brown
February 7, 2012
Calif.’s Prop. 8 Violates Equal Protection, Ninth Circuit Rules
by Jeremy Leaming

In a striking, though perhaps short-lived, victory for marriage equality, a federal appeals court panel invalidated California’s infamous Proposition 8, a ballot initiative that had overturned same-sex marriage in the state.

The U.S. Court of Appeals for the Ninth Circuit ruled 2 -1 today that the anti-equality measure “served no purpose, and no effect, other than to lessen the status and human dignity of gays and lesbians,” the Los Angeles Times reports. The Ninth Circuit majority concluded that Prop. 8 subverts the U.S. Constitution’s equal protection clause.

Prop. 8 was passed, with the backing of religious right organizations, not long after the California Supreme Court ruled that a right to wed could not be denied to same-sex couples, and that doing so would violate the equal protection rights of lesbians and gay men. Prop. 8 amended the state constitution to bar same-sex marriage.

The majority opinion in Perry v. Brown, written by Judge Stephen Reinhardt (pictured) upheld a lower federal court ruling by retired federal judge, Vaughn R. Walker, which invalidated Prop. 8.

“Proposition 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them, while leaving in place all of their other rights and responsibilities as partners – rights and responsibilities that are identical to those of married spouses and form an integral part of the marriage relationship,” Reinhardt wrote.

Prop. 8 also resulted in an ignoble state constitutional rule that protected marriage only for straight couples, Reinhardt said.

“In adopting the amendment, the People simply took the designation of ‘marriage’ away from lifelong same-sex partnerships, and with it the State’s authorization of that official status and the societal approval that comes with it,” Reinhardt wrote.

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Civil rights, Other courts, LGBT issues, Constitutional Interpretation and Change, Equality and Liberty, Judge Stephen Reinhardt, marriage equality, Perry v. Brown, Professor Rebecca L. Brown, Proposition 8
July 9, 2010
The Troubling Meaning of Senators’ Attacks on Justice Thurgood Marshall
Likely the most disconcerting moment of the Kagan Supreme Court confirmation hearings was the trashing of former Justice Thurgood Marshall by a gaggle of Senate Judiciary Republicans. The senators' attacks on Marshall as a wildly out-of-step, activist justice were sharply criticized by academics, such as Maryland law school professor Sherrilyn A. Ifill and civil rights advocates like the NAACP LDF's John Payton.
In a recent article for the Los Angeles Daily Journal, University of Southern California law school professor and former Marshall law clerk Rebecca L. Brown explored the Republican senators' "highly troubling" attacks on Marshall.
Brown, the Newton Professor of Constitutional Law at USC's Gould School of Law, wrote:

What, then, is the object of the derisive remarks we heard last week? The only answer is the use to which Justice Marshall put his judicial methodology, in pursuit of the ideas and principles that he valued. As a justice, Marshall's vision of the Constitution was a document true to its promise of equal moral and political status for all; a document dedicated to protecting individuals from arbitrary and unfair treatment by government; a document protecting the integrity of the democratic process as one open to all people, all points of view, all economic classes, and all political parties; a document designed to protect freedom of conscience in all people from government orthodoxy, and to protect personal dignity from unwarranted invasion. These are some of the principles that Justice Marshall recognized in the Constitution and voted consistently to vindicate when he was on the bench. Justice Marshall's name is synonymous with these ideals.

So when U.S. senators hold up the name of Thurgood Marshall as a negative symbol of judicial behavior, they are conspicuously condemning an understanding of the Constitution as a vehicle for protecting equality, fairness, electoral integrity, and autonomy, the ideas in whose service Justice Marshall voted in every case. And of course most saliently, because of Justice Marshall's personal history, first as a principle architect of the litigation strategy that ultimately dismantled Jim Crow, and then as the first justice who was a descendant of slaves, they are also painfully condemning in a broad symbolic sense the early successes of the civil rights movement itself.
Brown's entire article is here (pdf), posted with the permission of Daily Journal Corp. (2010).
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Supreme Court, judicial nominations, Justice Thurgood Marshall, Kagan Confirmation Hearings, Professor Rebecca L. Brown

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