Judge Janice Rogers Brown

  • June 6, 2012

    by Jeremy Leaming

    The libertarian argument wielded against the Obama administration’s health care reform law was propelled quickly and effectively by a right-wing “infrastructure” that has its sights set on longstanding, but weakened social safety net laws.

    Media Matters’ David Lyle says those concerned about the nation’s social safety net and the Constitution’s progressive values, “should remember how aggressively and efficiently the right was able to deploy its view of the Constitution as a weapon, and meet future attempts to do so head on.”

    Lyle cites a recent Salon piece by Northwestern University law and political science professor Andrew Koppelman, which provides a detailed examination of the evolution of the wildly libertarian argument used against the Affordable Care Act’s minimum coverage provision. That provision of the law requires Americans who can afford it, to purchase a minimum amount of health care insurance starting in 2014.

    Lyle writes:

    Koppelman's research shows that within a few months in mid-2009 the constitutional argument against health care reform went from nonexistent to a subject of mainstream discussion. Koppelman was unable to find any published claim that the individual mandate would be unconstitutional prior to a July 2009 Federalist Society issue brief written by two former Bush administration officials. In August 2009, conservative lawyers David Rivkin and Lee Casey, who regularly write on issues the right-wing legal infrastructure wishes to move into the mainstream, published a Washington Post op-ed attacking the mandate on constitutional grounds. On September 18, law professor Randy Barnett, who would play a leading role in the subsequent litigation against the act, first weighed in on the issue with a post on Politico. Koppelman notes that days later CBS News reported that "[i]n the last few days, a new argument has emerged in the debate over Democratic healthcare proposals," and that CBS mentioned that the constitutionality issue had emerged on The O'Reilly Factor and Fox News.

    The Right’s ability, Lyle continues, to define the constitutional debate “is all the more potent because it so effectively complements a highly ideological, bordering on politically partisan, conservative pro-corporate wing of the federal judiciary.”

    He notes, among other instances, a recent concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, appointed to the federal appeals court bench by George W. Bush, used her opinion to launch a screed against the federal government’s efforts to battle poverty and provide a sturdy social safety net.

  • April 24, 2012
    Guest Post

    By Adam Winkler, a constitutional law professor at UCLA School of Law


    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.

  • April 20, 2012

    by Nicole Flatow

    In a recent decision about the regulation of milk, D.C. Circuit Judge Janice Rogers Brown issued a concurrence railing against post-New Deal progress and economic regulation that Media Matters’ David Lyle calls “a sweeping radical libertarian manifesto” and Jonathan Turley calls “less dicta than diatribe.”

    Brown writes:

    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). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.

    While Brown’s radical views have long been known, her injection of those views into a judicial opinion has raised alarm bells even from conservatives like Orin Kerr, who writes in The Volokh Conspiracy that Brown “runs a risk of being perceived as blending political and judicial roles.”

    Slate’s Dahlia Lithwick posits that Brown was probably emboldened by the Supreme Court Justices’ “Tea Party rhetoric” during oral arguments on the review of the Affordable Care Act. She writes:

  • January 11, 2012
    Guest Post

    By Stephen I. Vladeck, professor of law and associate dean for scholarship at American University Washington College of Law.


    Near the end of her majority opinion in Latif v. Obama (the most recent decision by the D.C. Circuit in the Guantánamo habeas litigation), Judge Janice Rogers Brown offered the following observation:

    As the dissenters warned and as the amount of ink spilled in this single case attests, [the Supreme Court’s] airy suppositions [in Boumediene v. Bush] have caused great difficulty for the Executive and the courts. . . . Boumediene fundamentally altered the calculus of war, guaranteeing that the benefit of intelligence that might be gained—even from high-value detainees—is outweighed by the systemic cost of defending detention decisions. While the court in Boumediene expressed sensitivity to such concerns, it did not find them “dispositive.” Boumediene’s logic is compelling: take no prisoners. Point taken.

    For reasons that I elaborate upon below, Judge Brown’s disturbing lament provides an unfortunately appropriate epigraph to mark the tenth anniversary of the detention of non-citizens without trial at Guantánamo.

    Let’s begin with Judge Brown’s suggestion that the “airy suppositions” in Boumediene “have caused great difficulty for the Executive and the courts.” Because the Boumediene Court left the details of habeas review to the lower courts, the only “airy supposition” to which she can be referring is the underlying requirement that the federal courts provide detainees at Guantánamo with a meaningful opportunity to contest the legality of their detention before a neutral decision-maker. Never mind that, according to the Boumediene majority, it is the Constitution itself that requires such an opportunity; as a pure policy matter, why shouldn’t we want the government to have to explain the basis for holding individuals for 10 years or longer without ordinary adjudications of their guilt (or, at the very least, of their ongoing dangerousness)?

    The answers Judge Brown suggests are because such adjudications (1) interfere with the Executive Branch; and (2) “cause[] great difficulty” for the courts. To the former, that certainly isn’t the position of the Obama administration. Indeed, one could perhaps argue that judicial review bolsters such detention by lending a judicial imprimatur to detention in cases in which the government prevails in the courts. Whether or not that’s a convincing rejoinder, though, Judge Brown offers no explanation for how judicial review otherwise interferes with the Executive Branch in any way more burdensome than requiring it to provide minimal evidence satisfying a fairly broad detention standard (especially under the D.C. Circuit’s case law) behind closed doors. One need look no further than the Latif decision itself to see the pains to which the courts have gone to keep sensitive information out of the public record, and there are to date no documented examples of sensitive information being improperly disclosed in the context of the Guantánamo habeas litigation.