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Legislating From The Bench

When the President came out against "legislating from the bench" did that mean he's no longer supporting Janice Rogers Brown? Here's the Alliance for Justice's writeup:

ustice Brown’s disdain for government runs so deep that she urges “conservative” judges to invalidate legislation that expands the role of government, saying that it “inevitably transform[s]... a democracy ... into a kleptocracy.” Following her own “pro-activist” advice, Justice Brown – always in dissent – uses constitutional provisions or defies the legislature’s intent to restrict or invalidate laws she doesn’t like, such as California’s anti-discrimination statute (which she condemns as protecting only “narrow” personal interests), hotel development fees intended to preserve San Francisco’s affordable housing supply, rent control ordinances, statutory fees for manufacturers that put lead-based products into the stream of commerce, and a false advertising law applied to companies making false claims about their workplace practices to boost sales. Justice Brown’s colleagues on the court have repeatedly remarked on her disrespect for such legislative policy judgments, criticizing her, in different cases, for “imposing ... [a] personal theory of political economy on the people of a democratic state”; asserting “such an activist role for the courts”; “quarrel[ing]... not with our holding in this case, but with this court’s previous decision ... and, even more fundamentally, with the Legislature itself”; and “permit[ting] a court ... to reweigh the policy choices that underlay a legislative or quasi-legislative classification or to reevaluate the efficacy of the legislative measure.”
Food for thought? Of course not. Just rank hypocrisy.

April 28, 2005 | Permalink


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Justice Brown’s colleagues on the court have repeatedly remarked on her disrespect for such legislative policy judgments, criticizing her, in different cases, for “imposing ... [a] personal theory of political economy on the people of a democratic state...”

It's innacurate to describe the constitution in exile folks as attempting to impose a personal theory of political economy on the people. They simply believe (incorrectly, in my opinion) that a great deal of the legislation dealing with economic matters is unconstitutional.

I must say, although I much more of a fan of Scalia-style jurisprudence than that espoused by Justice Brown, I'd nonetheless welcome dissenting voices from further to the Right. It would keep mainstream conservative jurists (to say nothing of liberals) honest.

Now, for what it's worth, the constitution in exile'ers make no bones about their preference for judicial activism (though no doubt they hold it to be a necessary evil that wouldn't be required had our legislative bodies and courts behaved themselves over the years).

But Matt's right that nominating somone like Brown to the Federal bench is at the very least inconsistent for a president who professes a distaste for judicial activism ("rank hypocrisy" is a tad dramatic, though, I'd say).

Posted by: P. B. Almeida | Apr 28, 2005 8:36:59 PM

"Judicial activism" has become a social-conservative buzzword meaning "any decision we don't like." It used to refer to the idea that judges were supposed to follow the law, not overturn it purely to implement policy.

That changed once the laws became more amenable to moderate and lefty social interests. All of a sudden you couldn't say "Just follow the law" and get a conservative result; sometimes you got the opposite. Like state's rights, it was never a real principle, and therefore was jettisoned when the result no longer satisfied.

Posted by: mythago | Apr 28, 2005 8:42:30 PM

See, not *all* hypocrisy-talk is boring.

Posted by: Julie | Apr 28, 2005 9:16:43 PM

let the decision stand, my droogies.

Posted by: praktike | Apr 28, 2005 9:17:09 PM

Maybe when he said "from the bench" he meant judges who were not in the starting lineup. :)

Posted by: fling93 | Apr 28, 2005 9:20:29 PM

And, of course, if anything Owen is even worse.

Posted by: Scott Lemieux | Apr 28, 2005 9:31:01 PM

Is there a url for the writeup on Brown?

Posted by: hilzoy | Apr 28, 2005 10:08:12 PM

To answer my question:

Posted by: hilzoy | Apr 28, 2005 10:10:25 PM

The world according to Janice Rogers Brown:

Gone will be all those intrusive federal regulatory agencies (e.g., OSHA, EPA, Securities & Exchange).

Gone will be such stupid things like the minimum wage and unions.

Gone will be Unemployment Insurance and student loans.

No more money on poor children. After all being poor builds character & ambition.

The first amendment will be reshaped (i.e. immoral & politically unacceptable speech will be limited.)

The government will regulate sexual and moral relations via anti-sodomy laws.

And no more Social Security! These benefits are more addictive that crack cocaine and millions of America's seniors are hooked! And it will probably generate economic efficiencies, as more current retirees are brought back to work.

Posted by: hadenoughofthisyet | Apr 28, 2005 10:19:38 PM

If she invalidates laws just because she does not like them, is that not grounds for impeachment?

Posted by: Alice Marshall | Apr 28, 2005 10:38:53 PM

The quoted passage is someone's spin (obviously a liberal) and not Ms. Brown's own words.

Posted by: Half Sigma | Apr 29, 2005 12:02:22 AM

Food for thought? Of course not

Correct, Mathew, that quotation was just full of tendentious left-wing spin about a justice who was re-elected in California by an overwhelming margin.

Posted by: Jim2 | Apr 29, 2005 12:58:30 AM

There's nothing wrong with judicial activism. The problem is with judicial activism not based on Constitutional principles.

When the Supreme Court says, "Well, the Constitution says this, but it's outweighed by a compelling state interest" that's the bad variety.

When the Supreme Court says, "You can't do that because it's not Constitution", that's the good variety.

Posted by: Adam Herman | Apr 29, 2005 2:57:46 AM

Matt - don't forget about Pirscilla Owen.

Even Alberto Gonsalez exclaimed on one of her desenting opinions:

"would be an unconscionable act of judicial activism."

That is not all - Kennedy's new site explains more and PFAWhas all the details:



Posted by: Kevin Thurman | Apr 29, 2005 8:44:28 AM

One of the recent commenters hit the nail on the head.

Saying that the Constitution invalidates all 50 states' laws against abortion, even though no one had ever dreamed that the Constitution had that effect: Judicial activism. (Also known as "making sh** up.")

Saying that the INTERSTATE COMMERCE Clause allows the federal government to regulate anything and everything, even that which is NOT interstate and NOT commerce -- also an example of "making sh** up," even if it means upholding the laws in question.

Suggesting that the Interstate Commerce Clause should be allowed to mean what it says, i.e., the federal government has to limit itself to stuff that is commercial and interstate -- that may mean striking down some laws, but it's based on the ACTUAL Constitution, rather than on some liberal's wet-dreams.

SO: First two examples both involve "legislating from the bench," because both involve judges making up sh** that is simply not in the Constitution. Last example is judicial activism of a sort, but is NOT "legislating from the bench," because the judge is simply enforcing the actual Constitution.

Posted by: Functional | Apr 29, 2005 9:34:24 AM

Unless you're trying to engage in partisan hackery (I suspect not) you're missing the point. The conservative theory (or at least the theory the conservative hacks are trying to sell - don't know what serious conservative legal scholars think) is that there's a unique, correct, intersubjectively accessible way to interpret the Constitution. There are vague areas and points about which reasonable people can disagree, of course, but the correct theory still lays down boundaries, and lots of stuff falls outside them.

Activism, on this notion, is departure from the correct theory to impose your own preferences regarding policy, so conservatives who would radically rewrite our jurisprudence wouldn't be engaging in activism, just correctly interpreting the Constitution as written.

Posted by: Anton | Apr 29, 2005 10:14:01 AM

When Janice Brown speaks, she at least has a consistency, however off you may think it is. Priscilla Owen, on the other hand, makes her decisions to suit her pre-made conclusions case by case.

A frightening example of Brown;
The Constitution itself was transmuted into a significantly different document...1937...marks the triumph of our own socialist revolution...Politically, the belief in human perfectibility is another way of asserting that differences between the few and the many can, over time, be erased. That creed is a critical philosophical proposition underlying the New Deal.

Brown has no problem upending cases of settled law.

Priscilla Owen presents a monster of a different sort.

Posted by: The Heretik | Apr 29, 2005 10:43:14 AM

Adam, the 'judicial activism' conservatives have decried is actually re-writing or re-interpreting laws, not because of what the Constitution says, but because the judge doesn't like the laws. Not every lawsuit involves a Constitutional question.

Posted by: mythago | Apr 29, 2005 12:10:31 PM

Here's the problem: all of those past dissents by Justice Brown were issued from the California STATE Supreme Court, dealing with STATE legislation. There's no Commerce Clause justification for limited government in a state setting. Rather, the 10th Amendment expressly grants all rights not granted to the federal government to the states or the people.

In short: States are NOT restricted to Constitutionally enumerated powers. They may not cross Constitutional barriers, since the 14th amendment incorporated the Bill of Rights to the states - hence Roe (if you believe in the penumbra - there is not a legitimate federalism issue, there is an entirely legitimate penumbra issue).

Does anyone know of a provision of the California constitution that would prevent any of the legislation in question? Of course not. That's why Brown always wrote in dissent.

Posted by: Amendment X | Apr 29, 2005 12:49:10 PM

Let's get something straight. The only reason that Shrub nominated her was because she was a Negress (to put it bluntly). She's an idiot. She's an idiot not because she's a Negress. She's an idiot because she's an idiot.

Posted by: raj | Apr 30, 2005 1:10:34 AM

If anyone wants to see a rational discussion of Justice Brown's views, look here.

Posted by: Jim2 | May 1, 2005 2:11:08 AM







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Posted by: RON WALDRON | May 26, 2006 8:54:05 PM

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