Who is Janice Rogers Brown?
One of the most controversial potential nominees to the Supreme Court is Janice Rogers Brown. Recently confirmed to the DC Circuit, Judge Brown's nomination to that position was heavily contested, and only approved after a group of moderate Senators from both sides of the aisle agreed on a compromise to avoid the potential use of the "nuclear option." (Photo via The Washington Blade.)
Prior to her confirmation, Judge Brown served on the California Supreme Court since 1996, although at the time of her nomination to that post the state bar gave her a rating of "unqualified." Her anti-government statements in speeches and from the bench have been particularly noteworthy. Some examples collected by People for the American Way include:
Some things are apparent. Where government moves in, community retreats, civil society disintegrates and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible. ["A Whiter Shade of Pale," Speech to Federalist Society (April 20. 2000)("Federalist speech" at 8]
A few other hints about her jurisprudence:
Judge Brown and Racial Discrimination: In several cases, Brown has written dissenting opinions insisting that victims of racial discrimination have no grounds for relief. In Aguilar v. Avis Rent a Car Systems, Inc., she argued that Title VII of the Civil Rights Act could violate the First Amendment.
Judge Brown and Economic Regulations: Judge Brown has praised the mostly reviled Lochner decision as consistent with her view of the Constitution, noting, "That Lochner dissent has troubled me - has annoyed me - for a long time and finally I understand why. It's because the framers did draft the Constitution with a surrounding sense of a particular polity in mind." She has also advocated against the New Deal in general, calling it "the triumph of our own socialist revolution."
Judge Brown and Choice: In dissenting from a ruling striking down a parental consent law, Brown said "the ruling would allow the courts 'to topple every cultural icon, to dismiss all society values, and to become final arbiters of traditional morality'." In another case, Catholic Charities of Sacramento, Inc. v. Superior Court, she dissented from a holding that required organizations like Catholic Charities to provide insurance coverage for contraceptives.
Written By:Jason On September 30, 2005 5:42 PM Written By:Elisabeth On October 2, 2005 7:21 PM
Janice sounds great. Brilliant, in fact. What's the matter? You don't like our Constitution? Why then are you called the American Constution Society, when in fact you are a bunch of statists posing in the clothes of those who want to follow our Constitutional form of government? Tell the truth, who's smarter, on pain of your life for lying: Janice, or Chuck Schumer? What a joke to even compare them. One's honest, and intelligent and thoughtful, and the other is a power mad, money and power grabbing hypocrite. Even the fact that she is pro-choice, a woman, and a minority isn't enough to satisfy you frauds.
What an unfair depiction of Janice Rogers Brown this post is.
Brown never said that Title VII violated the First Amendment. What she said is that an injunction issued under the California Fair Employment and Housing Act banning racist speech, based on long-past racial harassment, was overbroad and violated the First Amendment. That case, Aguilar v. Avis, didn't even involve Title VII. It involved the prior restraint rule and whether an injunction could be issued to ban racist speech out of mere speculation that it might contribute to the subsequent development of a hostile environment.
Brown did suggest that there might be rare cases in which the First Amendment might bar any otherwise actionable racial harassment claim based on speech, and observed by way of example that a city could not ban racist speech on the street to prevent a "hostile sidewalk environment."
But she was joined in dissent in that case by the California Supreme Court's two most liberal members, Stanley Mosk (the most famous state supreme court justice) and Joyce Kennard (an Asian American). So her dissent was hardly a sign of racism.
And the idea that the First Amendment occasionally bars discrimination or harassment claims based on speech isn't new. The Tenth Circuit barred a sexual harassment claim against a church in the Bryce case, citing a Free Exercise right to engage for churches to freely discuss sexual issues. And almost every circuit has held that churches have plenary authority under the Free Exercise Clause to select ministers, who qualify as the "voice of the church," and that such authority trumps Title VII when the First Amendment and Title VII conflict. (See, for example, the Fourth Circuit's Rayburn decision).
Recognizing that First Amendment limits Title VII has not caused the sky to fall, nor have radical consequences ensued.
In the same speech where Brown criticized the Holmes dissent in Lochner v. New York, she also criticized the actual ruling of the case and called an overreach of judicial power (or something to that effect). An honest profile would have acknowledged that point.