Democrats’ War On A Woman Judge

A number of pro-Democrat publications have continued what has been a decades-long attack on one federal judge. She has outspokenly talked about the need to unravel the court decisions which gave aid and comfort to the progressive agenda, including expanding the meaning of the Constitution beyond the Founders’ wildest dreams.

The judge is DC Court of Appeals Judge Janice Rogers Brown, and her latest critic is the house organ for the Democratic Party, The New Republic. In a recent and obscure case entitled Hettings v. United States, Brown wrote a dissenting opinion in which she savaged the entire expansion of the federal government since the Franklin Roosevelt administration. Normally reserved in her legal opinions, Brown dumped on the theory behind federal price controls over businesses operating entirely within the boundaries of a single state. The case involved a matter eerily similar to the federal power grab of the Agricultural Marketing Agreement Act of 1937. By that time, FDR had managed to replace two key Justices on the US Supreme Court with constitutional expansionists.

The high court agreed that even small farms which produced milk only within the boundaries of one state could be regulated since many such small farms aggregated together nationwide would have a “cumulative effect” on interstate commerce, even though they individually have nothing to do with each other. Thus, the power to regulate the farm businesses was a proper exercise of federal power.

In the current case, the court held that a family farm operation with two in-state milk production facilities could be required to pay into a federally-established common fund that guarantees that small farms get the same retail price for their milk as the larger farms (such as the Hettings’ facilities). Yes, ladies and gentlemen, the progressive doctrine of “equality of outcome” has been around for a very long time. The rule goes back to the late 30s, and Supreme Court opinions have upheld the power as recently as 1993 (“laws involving economic policy deserve a strong presumption of validity”).

I see this as a step in the right direction, even if Brown’s effort failed. The New Republic sees it as a threat to establish “conservative judicial activism.” Judge Brown shares many of the same legal and constitutional views as four of the current Supreme Court Justices. For those of you not conversant with the oddities of California politics, the legislative and executive branches are in a Democratic stranglehold, but the state’s Supreme Court, which was Judge Brown’s previous home, is quite conservative. After then-governor Jerry “Moonbeam” Brown suffered the loss of three of his fellow liberals from the state Supreme Court via recall, his Republican successors appointed solid judicial conservatives to the court, including Judge Brown.

Present Governor Moonbeam is just waiting for his opportunity to reverse that majority, but for now he may end up facing a hostile state Supreme Court if his questionable tax and spend initiative is successful at the voting booths in November. In its present form, the initiative covers two subjects, a thing not allowed by the state constitution. At least Governor Brown doesn’t have to deal with Judge Brown over that issue, much to his relief, since Janice Rogers Brown is not only a woman sitting on an appellate bench in faraway DC, but black as well.

So why are The New Republic and leftist/progressive judicial theorists so exercised over a failed dissenting opinion in the DC Circuit on a minor case involving milk production and price-fixing? It’s simple. The dissent expresses an opinion that strongly disfavors federal mandates, an opinion shared by strict constitutionalists and very likely at least four of the nine US Supreme Court members. Obamacare (the Affordable Care Act which the average taxpayer and small businesses can’t afford) is before the Supreme Court. It is important to note that in the law, facts may be very different but the issues may be nearly identical.

First, the Justices must “distinguish” the cases. That means find the dissimilarities in constitutional theory. The Hettings case involves long-standing principles of regulation of an intrastate business. In that, it is different from the Obamacare case. But then they must look at the constitutional similarities. Both involve mandates, but Obamacare has no discernible precedent when the government attempts to impose a mandate across state lines and nationwide. Thus, the Supreme Court can recognize many years of precedent (however reluctantly) for intrastate mandates, but “distinguish” the current case by simply finding that there is no precedent requiring them to uphold Obamacare which is an interstate, national mandate.

If the Supreme Court Justices follow Judge Brown’s reasoning, the Obamacare purchasing mandate will be dead, and quite possibly the entire Affordable Care Act. The New Republic and its fellow-travelers call this judicial activism. But that’s just a sham. The purpose of calling it that is to use conservative arguments about liberal judicial activism against strict constitutionalists. That’s simple nonsense. Dismantling decade upon decade of judicial imposition of law and regulation which was never imposed or intended by the legislative and executive branches or the Constitution is not activism—it’s the height of conservatism.

Only time will tell if Judge Brown’s dissent in a milk case will become the majority opinion on Obamacare. If it does, perhaps the courts will stand as a bulwark against further federal expansion. Griswold v. Connecticut, Roe v. Wade and Kelo v. New London are only the most recent and glaring examples of judicial activism, twisting the words and meaning of the Constitution and occasionally simply adding new words. Reversing that trend is not “activism.”

As I said, Judge Brown’s dissent was not very judicious, but it was judicial. So I’m going to conclude with her own words: “The milk regulation reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competition and consumers. The courts have been negotiating the terms of surrender since the 1930s. The Supreme Court has abdicated its constitutional duty to protect economic rights completely. The court has given in to the political temptation to exploit the public appetite for other people’s money either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs or price-fixing regimes to benefit special interests."

The best argument The New Republic can come up with is that Brown is one of the most radical partisans of the "Constitution in Exile" movement. I’m not sure that’s true, but I’m also pretty sure that Brown would consider that a compliment. Even one of the judges in the majority on the Hetting case voiced his basic agreement with much of Brown’s dissent, declining to join her on the grounds that he was “reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not directly challenged by the petitioner.” In the Obamacare case, the petitioners have included just such a challenge. The left calls her a "very angry judge." Well, there is such a thing as righteous indignation, but does she look angry to you?