Life tenure

    

Remember Janice Rogers Brown, the California Supreme Court justice who was one of President Bush #2's favorite federal court nominees? Dahlia Lithwick checks in on what the good judge has been up to lately:

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.

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).

Lithwick sees something else at work besides garden-variety judicial inactivism on the right:

There’s one other point worth making, before we leave Judge Brown to her open-mic libertarian musings. She is, beyond any doubt, apt to appear on any short list for Mitt Romney’s choice to replace any of the four Supreme Court Justices who are currently in their 70s, some of whom will be 80 by the 2016 elections. In that light, this concurrence looks less like a judicial opinion than a job application. I have written before how ironic it is that a liberal jurist can be disqualified from a judicial confirmation hearing for expressing a single progressive idea in a law review article, whereas when it comes to conservative judicial nominees extreme and full-throated ideological exhortations are usually an added bonus. For Brown, the choice to write an opinion eviscerating New Deal worker and health protections at precisely the moment these issues are burning up cable television and Tea Party rallies is just smart politics. It’s hard to imagine a liberal shortlister attempting the same and surviving a Supreme Court confirmation bid. Or a confirmation bid of any sort, really.

The case is Hettinga v. United States.

Senator Jim DeMint thought she was a liberal.