This Judge is More Right-Wing Than Thomas

By Simon Lazarus and Lauren Saunders

Senate Republicans apparently are ready to confirm California Supreme Court Justice Janice Rogers Brown to the D.C. Circuit Court of Appeals today, based on assurances from Republican leaders that the staunchly conservative Brown’s views are “mainstream.” But before the vote, caucus members may want to take a hard second look, in light of information from an unlikely source — their fellow Republicans on the U.S. Supreme Court.

On May 23, all but unnoticed amid the clamor over the deal that cleared Brown for her imminent up-or-down vote, the court denounced a central tenet of the “property rights” constitutional agenda Brown has touted — to impose on government a broad mandate to compensate businesses for the costs of complying with regulation.

In Lingle v. Chevron, Justice Sandra Day O’Connor, writing for all nine justices, including President Bush favorites Antonin Scalia and Clarence Thomas, rejected Chevron’s claim that a Hawaii commercial rent-control law violated the Fifth Amendment prescription that private property not “be taken for public use, without just compensation.”

Chevron alleged that, while in theory Hawaii’s asserted goal of reducing gasoline prices was admittedly a “public use,” in practice capping service-station operators’ lease payments would fail to promote that goal. If accepted, that intrusive scrutiny of a law’s effectiveness could license federal judges to rove through the entire body of health, safety, environmental, anti-discrimination, consumer-protection and most modern domestic reform laws and throw them out if they concluded that their provisions would not actually work to achieve legitimate “public” goals.

Not since the first third of the last century have judges presumed themselves thus empowered to second-guess social and economic legislation, acting in effect as a superlegislature. Among sitting judges, Brown has been the undisputed champion of restoring what conservative columnist George Will recently referred to as “the Supreme Court’s pre-1937 hyper-activism in declaring unconstitutional…the post-New Deal regulatory state.”

In particular, she has praised the court’s 1905 Lochner v. New York decision, which kicked off its campaign to strike down minimum hours, wages, child-labor rules and other liberal restrictions — nearly 200 laws in all — a project decried by conservative proponents of judicial restraint such as Robert Bork as “the quintessence of judicial usurpation of power.”

Brown has fashioned a specific doctrinal technique for — in her own words — “revival of what might be called Lochnerism lite,” a “means-end standard of scrutiny [of legislation] under the takings clause.” This is the very approach Chevron unsuccessfully urged on the current court precisely one century after the original Lochner decision.

In cases coming before her court, Brown has improvised legal theories to implement this agenda. In one of her most noted lone dissenting opinions she argued for invalidating a San Francisco development fee imposed on apartment owners to fund affordable housing. Calling the fee “theft,” Brown argued that, where legislation is “designed to shift wealth from one group [residential hotel owners] to another [low-income tenants], it is a per se taking requiring compensation.”

Vigorously rejecting her bold claim, Brown’s colleagues noted that “nothing in the law of takings would justify an appointed judiciary in imposing [her] personal theory of political economy on the people of a democratic state” and observed that her approach "would open to searching judicial scrutiny the wisdom of myriad government economic regulations, a task the courts have been loath to undertake.”

In last month’s Lingle v. Chevron decision, in terms strikingly similar to the California majority’s rebuke of Brown, Justice O’Connor’s opinion derided the Chevron-Brown “means-end” approach as “remarkable, to say the least, given that we have long eschewed such heightened scrutiny when addressing ... challenges to government regulation.” She added, “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.”

Ordinarily the cautious pragmatist, Justice O’Connor conspicuously went out of her way here to warn lower-court judges never to think of going there. More significant, the decision delivers this message of restraint not only from the court’s preeminent centrist but from ultra-conservatives Scalia and Thomas. By filing no separate opinions, they endorsed not simply the result in this particular case but O’Connor’s broad dismissal of the underlying Brown-Chevron agenda.

In recent years, just as Brown has ever more boldly advanced the property-rights agenda, the court has stepped in the opposite direction, and even Scalia and Thomas, who have sounded similar themes, have muted their enthusiasm. With this new 2005 decision, the court has coalesced to marginalize the libertarian dream of “restoring” a pre-1937 “Constitution in Exile” by crippling regulatory programs with judicially imposed compensation costs.

Perhaps news that a unanimous Supreme Court has declared her constitutional agenda outside its mainstream could change that calculus for some independent Republican senators. Putting Brown on the powerful D.C. Circuit Court could serve neither the nation’s best interests nor their party’s.

This editorial originally appeared in The Hill.