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How Dare She

Mises Daily: Sunday, November 09, 2003 by

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No institution has worked more consistently to obliterate property rights than the federal courts, making certain political groups very happy. Thus, it's no surprise that Democrats on Capital Hill are blocking the confirmation of a judge to the U.S. Court of Appeals for the District of Columbia Circuit who — wonder of wonders — believes in property rights.

That judge is Justice Janice Rogers Brown of the California Supreme Court. One Democrat disparaged her as "the love child of Ayn Rand and Lyndon LaRouche." David Margolick, in the current issue of Vanity Fair writes; "When people begin poring over what she has written — more in her speeches than in her opinions, though her opinions are often tasty enough — they will be amazed and, in some cases, horrified."

Just what makes Justice Brown so horrifying? It must be statements like "Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destinies atrophies." In that same speech Brown went on to say, "The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible."

Unlike other judges, Brown typically upholds property rights against government regulation — interference which, she believes, has helped turn "democracy into a kleptocracy."

The big worry is that with judges like Brown, the courts might work to unravel the myriad of New Deal laws that have, since enactment, trampled property rights and hamstrung the economy. Referencing an article by the University of Chicago Law School's Cass Sunstein that appeared in The American Prospect, Margolick opines: "Now [the supreme court] is setting its sights on the New Deal and the expanded federal authority it enacted over the marketplace — wages, hours, working conditions, labor relations, among other things — seeking to reinstate the laissez-faire regime of a century ago." And he quotes Sunstein, who declared, "A lot of us think the free market is a good idea, but this would suggest that it is constitutionally sacrosanct, and that's very radical stuff."

Justice Brown has led a life that embodies the American dream — at least the dream as envisioned by the nation's founding fathers. The 54-year-old Brown was born in Greenville, Alabama, the daughter of sharecroppers. Excelling in law school though a single mother, she graduated from UCLA Law School in 1977. She became a successful attorney, a successful judge and was elected to the California Supreme Court. The last time she ran for the court in 1998, she garnered 76 percent of the vote. During the seven years she's served on the court, Brown has written over 200 opinions. And these are opinions that — unlike most legal scribbling — are actually readable. Wrote Vance Raye for the Sacramento Bee: "Her fresh and incisive mode of expression — a delightful departure from the vapid style that characterizes most legal writing — is admired even by those who disagree with her views."

An example of Justice Brown's clear and biting prose: "Judicial activism is real and it has produced many jurists who see themselves less as judges than philosopher-kings ready to rule and dispense their wisdom to the great unwashed masses."

In Hi-Voltage Works Inc v. City of San Jose, the California court unanimously found that a plan providing preferences to minority subcontractors violated Proposition 209, a voter-approved initiative that outlawed affirmative action in that state's contracting and in other areas. The opinion written by Brown, was described by Vanity Fair's Margolick as "a prolonged attack on affirmative action generally that dissenters felt was overwrought and unnecessary."

In Aguilar v. Avis Rent A Car System Inc., Justice Brown disagreed with an injunction preventing an employee from using racial epithets, and concluded "though the expression of such sentiments may cause much misery and mischief, hateful thoughts cannot be quelled at too great a cost to freedom." In the eyes of Brown, the First Amendment protects the good, the bad and the ugly.

Predictably, a line of liberal groups has formed to oppose Brown's confirmation. However these groups and other Brown enemies agree that she is "a very intelligent jurist."

As columnist Jerry Brooks wrote recently; "A healthy majority of leftist policy hasn't come from legislation, but from litigation. ACLU minions, environmental activists, and their fellow travelers have done more damage to American culture and commerce through their legal efforts more than their legislative ones."

Justice Janice Rogers Brown could serve the cause of freedom mightily, helping stop the tide of collectivism that continues to wash over us.

If only she gets the chance.