By Harold Johnson and Timothy Sandefur
Posted on Freedom Advocates on November 23, 2003
FREEDOM ADVOCATES SUMMARY: The credentials and character of Janice Brown are beyond dispute. In her jurisprudence, courts should function, first and last, as defenders of freedom, say Johnson and Sandefur in this article published during her judicial nomination hearings.
ARTICLE: California Supreme Court Justice Janice Rogers Brown, President Bush’s nominee to serve on the U.S. Court of Appeals for the District of Columbia, is the target of some of the most inflammatory opposition since Clarence Thomas took his seat before the Senate Judiciary Committee more than a decade ago. Don’t expect this strafing to end with the committee’s vote on Brown (along party lines, most likely), which might happen this week. As things stand now, she could be the latest Bush nominee to face a filibuster when her nomination reaches the Senate floor. As with the Thomas nomination, both supporters and detractors are playing the race card. Opposition groups say Brown isn’t “really” black because she has been critical of government policies of redistributing wealth and giving preferences to racial minorities in public contracting. Supporters, emphasizing her background as the daughter of an Alabama sharecropper in the segregated South, accuse her foes of racism against black conservatives. Both sides should focus more on Justice Brown’s actual record and ideas. They will discover a jurist of insight and integrity – and learn valuable lessons about the judiciary’s proper role in a government system that is supposed to be dedicated to individual rights.
According to conservative boilerplate, a judge’s task is to apply, narrowly, the written law and resist temptation to become a policymaker. Brown’s understanding is more expansive. Although she regularly insists that courts are not, indeed, to behave like legislatures, she rejects any notion of the judge as a robotic strict constructionist. In her jurisprudence, courts should function, first and last, as defenders of freedom.
Consider her dissent last year in San Remo Hotel v. San Francisco, a case that upheld the heavy fee that San Francisco exacts from residential hotels if they seek permission to convert to tourist use. Brown expressed concern that owners of these small hotels were “a relatively powerless group” who had little influence with the political authorities. The city had simply declared that either they would continue serving a transient population or pay into a fund for the homeless, if they insist on becoming hotels for tourists and business people. As Brown saw it, singling out these small hotels for this social-welfare duty amounts to an unconstitutional taking of private property for public use. The Fifth Amendment, she observed, prohibits government from forcing “some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Brown writes with a flair that can delight laymen and law students while disgruntling stodgier observers. In her San Remo dissent, she turned the full rhetorical force on the power-tripping bureaucrats in the City by the Bay:
“Private property, already an endangered species in California, is now entirely extinct in San Francisco,” she observed. The City had become a “neo-feudal regime.” She reprimanded fellow jurists who automatically give a pass to confiscatory land-use restrictions. “Once again a majority of this court has proved that ‘if enough people get together and act in concert, they can take something and not pay for it.’ But theft is theft. Theft is theft even when the government approves of the thievery.”
In one of the few uses of the word, ever, in the history of American case law, Brown called San Francisco a “kleptocracy.” She excoriated the city’s refusal to acknowledge that “the free use of private property is just as important as … speech, the press, or the free exercise of religion.”
Brown’s judicial philosophy amounts to what is sometimes called the “Madisonian” view, because it reflects the allegiance to higher law and transcendent rights embraced by the “Father of the Constitution.” Not everything is open to majority rule, and courts must ensure that the majority does not run roughshod over groups that are unpopular or lack political power. As Brown put it in another dissenting opinion, “Courts must be especially vigilant, must vigorously resist encroachments that heighten the potential for arbitrary government action.” This principle, inevitably, leads back to matters of race.
Last year, in a case involving some of the most extreme police tactics ever sanctioned by the state’s Supreme Court, Justice Brown’s dissent went squarely to the issue of racial justice – displaying a skepticism of government power sets her apart from conventional conservative jurists. People v. McKay involved a police officer who pulled over a bicyclist who was riding against traffic. When the rider failed to produce a driver’s license or other identification, the officer arrested him and searched him. Justice Brown noted that it is not illegal to ride a bicycle without identification, and riding the wrong way on a bike is “such a minor offense that it hardly seems worth the officer’s time to issue a citation.” The Court’s decision upholding the arrest and search, Brown concluded, stretched the Fourth Amendment’s protections to the breaking point. “If full custodial arrest is authorized for trivial offenses, the power to search should be constrained,” she wrote.
But then Brown took a step back to look at the issue more broadly. She believed the Court was ignoring an obvious and troubling issue: broadening police discretion threatens to perpetuate racially discriminatory police practices: “I do not know Mr. McKay’s ethnic background. One thing I would bet on: he was not riding his bike a few doors down from his home in Bel Air, or Brentwood, or Rancho Palos Verdes–places where no resident would be arrested for riding the ‘wrong way’ on a bicycle whether he had his driver’s license or not. Well…it would not get anyone arrested unless he looked like he did not belong in the neighborhood.”
Janice Brown’s belief that no one should be treated less equally because of skin color is recorded most ringingly in Hi Voltage Wire Works v. San Jose, a 2000 case that involved Proposition 209, California’s constitutional amendment banning race and sex favoritism by government. At issue was a city public-works program that required applicants for contracts to engage in special “outreach” efforts to contact disadvantaged subcontractors – not on a colorblind basis, but targeting racial minorities. All seven justices agreed that Proposition 209 bars such color-coded schemes in the awarding of government contracts. The court issued four separate opinions that expressed the point with varying degrees of clarity and conviction. By far the strongest, however, is Brown’s – the court’s main opinion, in which she was joined by three other justices. She gave Proposition 209 a broad and forceful reading, interpreting it to outlaw not just explicit quotas but also race and gender “goals,” because “a participation goal differs from a quota or a set-aside only in degree.”
Brown set the measure in historical context, hailing it as a statement of the venerable rule that no one should be treated better or worse than another on account of race. She quoted the late Yale Law School Professor Alexander Bickel: “[D]iscrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.” The U.S. Supreme Court had veered from this principle, Brown noted; Proposition 209 represents a decision by the California electorate to return to it, reasserting a goal of “equal opportunity for all individuals” rather than “entitlement based on group representation.”
Brickbats flew from some law professors, who accused Brown of rhetorical overkill or addressing U.S. Supreme Court cases that weren’t directly at issue. But studying her opinion will reward any student of the great issues of race and equality in American history. It offers an elegant historical synopsis – and underscores why California was right to reaffirm the principle of colorblind equal rights in its own constitution.
Justice Brown is committed to racial equality because she is committed to individual rights, and to protecting individuals, of all colors, against government abuse, even when the abuse is based in a popular consensus. Just as the small hotel owners of San Francisco should be free unjustified government coercion, and no contractor should be denied business because of race, so Mr. McKay should be free from arbitrary exercises of state power. Since many small entrepreneurs are members of racial minorities, protecting business against intrusive government meddling is more relevant to their welfare than most of the incendiary causes in Jesse Jackson’s bag of tricks.
There should be less focus on Justice Brown’s color and more on her ideas. They point to a strategy for combating those problems of class and race that still divide us: namely, recovering a concept of limited government, where individual opportunity and individual liberties are respected and protected.
This article was first published by FrontPage Magazine, November 5, 2003.
“Judging Janice Rogers Brown” by Harold Johnson and Timothy Sandefur[This article contains links to outside sources not controlled by Freedom Advocates and therefore are subject to change.]