JRB Confirmed

Julian Sanchez | June 9, 2005

Janice Rogers Brown, who appears to be the most libertarian of Bush's controversial nominees, has been confirmed to the D.C. Court of Appeals. Clint Bolick of the Institute for justice profiled JRB for Reason in 2003. Check her out railing against the "collectivist impulse" and name-checking Hayek and Richard Epstein. People for the American Way have compiled a list of JRB quotes that are supposed to show how awful and extreme and nuts she is. They tend to make me think she sorta kicks ass.

Comments

|6.9.05 @ 9:28AM|#

"Sorta"?

raymond|6.9.05 @ 9:33AM|#

Ms Rogers Brown has argued that it is right to apply a "higher law" than the constitution. Such a blatant attack on the church-state divide worries even some conservatives. (May 19, 2005 The Economist)

If this is accurate, I don't care how "libertarian" she is.

|6.9.05 @ 9:36AM|#

Ouch! If true, then I have spoken too soon.

PintofStout|6.9.05 @ 9:38AM|#

Perhaps she was speaking of Natural Law and Natural Rights (not enumerated in the BoR)because, as we all know, the Constitution is far from perfect.

|6.9.05 @ 9:40AM|#

raymond, from what I've read, Ms. Brown is perfectly happy to apply whatever school of legal reasonsing - strict constructionism, natural law, antinomian disregard for precendent, whatever - and subscribe to whicher set of facts, that will be most convenient in striking down laws she doesn't like. The laws she doesn't like being those that protect employees, consumers, and the environment.

So, yeah, she's pretty libertarian.

|6.9.05 @ 9:44AM|#

Doesn't your knee get sore from constantly hitting the desk?

raymond|6.9.05 @ 9:50AM|#

Perhaps she was speaking of Natural Law and Natural Rights...

Perhaps. The last quote given in the pfaw list includes this:

Only natural law offers an alternative to might makes right and accounts for man's "unrelenting quest to rise above the 'letter of the law' to the realm of the spirit."

(I haven't found the whole text of the speech. Yet.)

While I agree that "natural law" trumps the Constitution, the Constitution is not about morality. It's about the workings of the federal government and its relationship to the states and to the people.

When a judge - speaking as a judge - starts interpreting morality, I get very scared.

|6.9.05 @ 9:54AM|#

"strict constructionism, natural law, antinomian disregard for precendent, whatever - and subscribe to whicher set of facts, that will be most convenient in striking down laws she doesn't like."

Sounds like every judge. The whole constructionist vs. activist argument is BS. You choose the judge who likes policies you like.

The 'moderate' approach means you choose a judge who accepts the status quo interpretation of law as near ideal. This is why the argument against Brown was that she is 'out of the mainstream'. It seems to me that misses the point of being a judge, but maybe that's just me.

|6.9.05 @ 9:59AM|#

She sounds hysterical (and I do not mean funny).

|6.9.05 @ 10:02AM|#

Eh- maybe she talks a good game most of the time, there are many on the right who do. Unfortunately, they all seem to only follow through when its convenient for them. I distinctly remember GW stating during the campaign of 2000 that we must have a national dialog on property rights. I guess that became an incovenient discussion for him to initiate when he decided it was necessary to poop on the fourth amendment.

|6.9.05 @ 10:02AM|#

joe:

Seriously. You post here a lot. It's good to have people of different points of view. But snarky comments attacking the basic political philosophy of this exchange just makes you look like a troll. One wonders why you even bother.

On the subject:

Yeah, pretty much everything I've read on Brown has been baffling. The pieces (usually leftist crap from the AP or the Washington Post) spend a tremendous amount of ink wetting their panties about how much of an "extremist" Brown is. And then they cap off the pieces with her quotes, usually along the lines of "unchecked government is tyranny". To me, the actual words she speaks make the articles look ridiculous.

Is libertarianism such a hard pill for the sheeple to swallow?

|6.9.05 @ 10:03AM|#

The higher law comment is ambiguous and a bit unnerving, but her quotes at PFAW make her sound like a libertarian dream.

Phil|6.9.05 @ 10:14AM|#

Remember in recent weeks when there was a thread devoted to discussing whether it was OK to make nicey-nice with the extreme religious right wing of the Republican party in order to get the libertarian economic stuff? Bend over, because you're about to find out.

To be more clear: If you are a secularist thinker, and believe strongly in a government which governs from secular motives derived from the exercise of reason, rather than from a presumed duty to please a deity and live according to its rules, Janice Rogers Brown is. Not. Your. Friend. Let's see how libertarian she is the first time a case questioning the authority of the FCC, the FDA or the DEA to engage in some kind of moral nanny-stating comes up.

Vache Folle|6.9.05 @ 10:14AM|#

I'll believe that she is libertarian when I see it put into action.

Is there any kind of libertarian rating system for appellate judges?

|6.9.05 @ 10:16AM|#

I'm sorry, Nice Guy, is it unfair to tag libertarians as opposing laws that protect employees, consumers, and the environment?

|6.9.05 @ 10:19AM|#

I was thinking she was pretty cool till I read that last quote. Anyone who brings up Natural Law has some arbitrary standard that they are using it to justify - case in point: "Only natural law offers an alternative to might makes right and accounts for man�s �unrelenting quest to rise above the �letter of the law� to the realm of the spirit.�"

Replace "Natural Law" with "Bible", and I'd be less freaked out. At least with the Bible, I know what's written down (depending on what the version is). With Natural Law, I'm wondering where she's drawn that arbitrary line.

MP|6.9.05 @ 10:21AM|#

Yes, joe, it is. It is true that libertarians may oppose particular laws related to those issues, on grounds such as federalism and private property rights, but it is unfair to paint a broad brush and imply that any law related to those topics is something that would be opposed by libertarians. Contract enforcement laws "protect employees", anti-fraud laws "protect consumers" and local environmental regulations "protect the environment".

PintofStout|6.9.05 @ 10:22AM|#

Natural Law is the ONLY law. Anything else is an attempt to control. Natural Law isn't about morality per se either. When theft and force are written into law, that doesn't make them legitimate in a Natural Law view.

While Natural Law can't always be enforced, having a system of justice that can sometime resemble justice (retribution for actual harm) really helps.

Lysander Spooner had some pretty clear ideas of Natural Law.

Adam|6.9.05 @ 10:23AM|#

yes - libertarians oppose laws that unfairly discriminate against employers and constrain consumers' options...as far as the environment, there's plenty of green libertarians in the world..but of course, run-of-the-mill liberals just "care" oh so much more i suppose.

|6.9.05 @ 10:25AM|#

joe:

Correct me if I'm wrong, but what I gathered from your original post is that you lable libertarianism as erratic, inconsistent, hypocritical, and logically indefensible. You express not respectful opposition but just plain contempt.

|6.9.05 @ 10:30AM|#

At the risk of taking over Joe's role as Troll-in-Chief on this board, I have to say I'm amazed to find so-called libertarians still shilling for rightwing Republicans. Libertarians have been betrayed by this administration, and every libertarian on this board knows it in his heart. Libertarian principles have been gutted. This administration loves - loves - huge government, huge spending, and huge debt. It loves dictating the personal choices people want to make for themselves. It loves big business and hands passes out favors faster than Tera Patrick at a biker bar. It likes steel tariffs and textiles quotas. It likes adventurist foreign policy. It hates objective science.

Why do so-called libertarians continue to shill for the Republican party? The only thing I can think of is that the same groups that fund conservative big-government Republicans are the ones who fund Reason and other so-called libertarian institutes (you know who I'm talking about...but if you don't, it's Koch). They're the fig leafs of respecibility that cover up the gnarled genitalia of money politics.

Remove the scales from your eyes. If you still believe the GOP gives a flying fook about libertarian policies and principles, you're nothing but a sucker. JRB will carry water for the pro-business (not pro-market) big-government GOP. How much more proof do you need? How many more adventurist wars? How many more trillions of dollars of debt? How many more big-business subsidies, tariffs, and quotas? How many more entitlement programs? How many more years of double-digit increases in federal discretionary spending? How many more attacks on federalism?

Suckers.

Flame at will. ;)

|6.9.05 @ 10:35AM|#

Take a vacation joe, it's way overdue.

|6.9.05 @ 10:38AM|#

Slippery Pete:

No flames, dude. It's good to have some fire and brimstone.

I guess it's something like the Green Party. The Democrats basically own them, along with the so-called "Anarchists".

I think many libertarians have to constantly check themselves from falling into the Republican mindset. Up-front musings on the Drug War and the "christian" right helps a lot.

MP|6.9.05 @ 10:40AM|#

Hey Slippery,

How is voicing conditional support for a particular individual shilling for the GOP? JRB appears to have a record that is consistent with libertarian principles. Did you see that word? RECORD. It means a history of documented performance. The GOP in general is a bunch of power hungry jackasses. Individuals within the GOP, such as Sununu, can be given much more respect. Don't get so caught up in stereotyping that you forget the core libertarian principle, respect for the INDIVIDUAL.

|6.9.05 @ 10:43AM|#

I think you mightbe on to something, Slippery Pete. I don't think that we can reasonably expect either Democrat or Republican to adopt policies, appoint judges, enact laws, etc that match our philosophy. They each might occasionally pay lip service to reducing government power and scope, but only when it reduces the power of the opposition.

raymond|6.9.05 @ 11:02AM|#

slippery pete -

I consider myself libertarian. And I don't recognise myself in your tirade against "us" at all.

Have you ever read Reason? Have you followed discussions on this board? It wouldn't seem so.

Libertarians have been betrayed by this administration, and every libertarian on this board knows it in his heart.

And most of us have said it out loud. Repeatedly, and very out loud. (Well, strictly speaking, this libertarian has never felt "betrayed". This libertarian never expected anything from Bush et al. but an on-going assault on fundamental human rights.)

|6.9.05 @ 11:12AM|#

Well, I certainly worked myself up into a righteous froth that time. ;)

I actually do understand that in the real world of democratic politics, negotiation is inevitable, and principle must be sacrificied - sometimes a little, sometimes a lot. But it perplexes me that many libertarians still align with the GOP, despite their frequent carping about it.

So I have complete respect for a party (or philosophy) that makes concessions to political reality. That's a sign of maturity. But today's GOP has become pretty much the polar opposite of everything most libertarians believe in.

Disclosure: I am not a libertarian. The reason is that there is no constituency for libertarian policies. Very few people actually, truly want libertarian government. Many people proclaim their principled stand against government interference and favoritism and money politics, but when in office, their actions do not follow and their constituents still want their free pills and mortgage deductions.

The danger is that libertarian organizations (like Reason) lend a frisson of principled respectibility that the ruling party does not deserve. All it does is make it easier for Republicans to shovel money and favors to big business. This, again, is not a pro-market outcome. It is anti-market, because it is pro-business.

In other words, with this GOP, when libertarians convince their fellow Republicans to forego government benefits, the result is not smaller government. The result is that big business is free to loot the store. THEY get the goodies. The result, therefore, is even bigger government. And, of course, this is precisely what has happened.

In therapy-speak, libertarians are enablers of corporatism and pro-business-ism. That is why Koch and other corporations aligned with the GOP fund them. And it's working. Some day, libertarians will begin to realize that they've been manipulated and lied to and that they never had a chance of enacting anything like their agenda. They were never taken seriously, even by their benefactors. Don't be pawns.

My 2 cents.

|6.9.05 @ 11:15AM|#

Pint,
I've had more unproductive discussions with 'Natural Law' folks over my tobacco habit than I have had with nanny statists. These people use 'Natural Law' to justify things they don't particularly like at any particular level and can invent 'Natural Law' reasoning to support it almost as well as nanny statists can invent 'studies' by 'experts' that prove what they want to prove.

|6.9.05 @ 11:16AM|#

I am a print subscriber to Reason, although I rarely get around to reading it anymore for the reasons I posted above.

I speak of the major libertarian organizations like Reason, Cato, etc. They are funded by the largest GOP donor corporations and individuals. The results speak for themselves.

|6.9.05 @ 11:17AM|#

Slippery, you seem to be committing a sort of "all-or-nothing" fallacy. Liking a Republican does not translate into liking Republicans. Supporting a Republican policy does not translate into supporting the Republican platform. Saying "Hey, this one particular judge might not be so bad" does not translate into "shilling" for the entire party.

Similarly, all of the more annoying traits of Republicans and Democrats ought not prevent one from acknowleding when the blind squirrel finds a nut.

|6.9.05 @ 11:26AM|#

Quoth the joebot

raymond, from what I've read...

Well, dish the links so we can all read it too.

|6.9.05 @ 11:27AM|#

At the risk of taking over Joe's role as Troll-in-Chief on this board, I have to say I'm amazed to find so-called libertarians still shilling for rightwing Republicans.

All the stuff about the Bush Administration you say after this sentence is true. But, I would interject two points.

1) Not every judge appointed by an administration is lockstep in agreement with the administration appointing them, or with all the other judges appointed by that administration. Just like with the elected officials of each party, there is variability in their views. Some judges will be more liberal than the mean, some more conservative. And some, more libertarian. That's simply a function of the number of qualified judges; a President couldn't appoint hundreds of judges who mirror his views exactly, even if he tried. From what we can tell so far, JRB seems to be toward the libertarian end of that spectrum. She's stood up for the Fourth Amendment and against the "Son of Sam" law, both times putting individual rights above "tough on crime" conservatism. What's wrong with praising what she's done so far and hoping she continues it at the federal level. JRB is not George Bush, and deserves to be judged on her own merits and failings.

2) On thinking that libertarian embrace of some conservatives and some conservative ideas is pay-for-play: Many libertarians, myself included, think the chance of the Libertarian Party calling the shots one day is zero. Zip. Nada. Therefore, if we are to have any influence whatsoever, and don't just want to be chin-stroking political theorists forever divorced from reality, it's in our interest to praise and work with the two big parties on the narrow interests that coincide with each party. Is this "shilling" for the two big parties? I know some libertarians would be perfectly content to always criticize the other parties and never raise a finger to actually try to get what we want out of them. In fact, I'm sure there would be a contingent of libertarians who continued to criticize and oppose the ruling party even if it was the LP, for not being ideologically pure enough. Me personally? I approve of Janice Rogers Brown being on the courts, and I praise the White House for getting her in. Is she [insert your favorite libertarian icon here]? Maybe not. But is she about as good as a libertarian can reasonably expect either of the parties to put on the bench? Signs point to yes. I want more like her in the future, instead of that Ten Commandments idiot from Alabama. So on this narrow issue, I have no problem with letting them know that libertarians (and I speak for myself) approve.

|6.9.05 @ 11:27AM|#

joe--

So is it your characterization that libertarians share the same policy goals as Brown, or is it that libertarians grab any theory they can to back up said prejudices as well? Because your post reads much like the latter.

If it is the former, I can forgive the usual liberal snark, straw man, and conflation of being against a law with being against the goal of a law. But if it is the latter, you really haven't understood much that you've read around here.

PintofStout|6.9.05 @ 11:32AM|#

Metalgrid,

I understand where you're coming from there. Perhaps a case of hijacking (I hope I don't get a file for that) the language. I mean a very strict, minimal Natural Law: You don't take what isn't yours and you don't hurt other people outside of self-defense. All this gets messy pretty easy, but it's a better basis than so-and-so said I could.

I mostly try to resort to this argument as a channel for the "I'm a soveriegn individual" argument. Basically, why can anyone tell me what I can't do without first owning me, which won't happen (of course respecting others same rights in the process).

And I am in no way advocating or supporting anyone. I brought up the Natural Law aspect as an alternative to the religious wacko reference. I really don't know dick about JRB or any other judge.

|6.9.05 @ 11:51AM|#

It seems from the site like this chick kicks ass.

I remember reading a long time ago a hit piece on Charlton Heston, when he became the head NRA dude. After reading all the quotes they had on him from the hit piece, I realized that he truly was a cool guy.

|6.9.05 @ 11:53AM|#

Slippery Pete, your comments on the political unpopularity of libertarianism and especially about selective, pro-business libertarianism are exactly how I feel.

I moved to Canada in large part because the spending up here is social, rather than military. I'd strongly prefer no government spending, but you don't get that many choices and my medical insurance payments were killing me. Still it is very nice to have Reason around, even if most of its wisdom will never be applied. I haven't read for very long yet, but already it makes me feel less lonely and less nuts.

Xmas|6.9.05 @ 11:54AM|#

I dunno about you guys, but this quote sounds pretty libertarian to me:

Where government advances - and it advances relentlessly - freedom is imperiled; community impoverished; religion marginalized and civilization itself jeopardized....When did government cease to be a necessary evil and become a goody bag to solve our private problems? ["Hyphenasia: the Mercy Killing of the American Dream," Speech at Claremont-McKenna College (Sept. 16, 1999) at 3,4]

|6.9.05 @ 12:04PM|#

Forget for a moment the namedropping of Hayek and Epstein. Brown drops so many other names in that article that it boggles the mind. Procol Harum, Thucydides, Edward Osborne Wilson, Blaise Pascal... she's perfected the art of the name drop! So not only is she qualified to sit on the federal bench, she's qualified to write music reviews for Pitchfork or book reviews for *gasp* Reason!

|6.9.05 @ 12:27PM|#

Janice Rogers Brown, who appears to be the most libertarian of Bush's controversial nominees

Isn't that like being the best scientist on the Kansas school board? :)

The question for me is not how good this single judge is. OK, that's an important question, but it's not as important as the overall character of his entire slate of nominees. If she's as good as some people on this forum claim, well, great! I'll celebrate that one small victory, but I won't delude myself into thinking that Bush deserves unchecked power over the judiciary just because of one good judge.

And if she isn't as good as some are claiming, if she doesn't come through when fundamental freedoms are at stake and the Constitutional language is clearly in favor of freedom, well, then I'll lambast her.

Finally, on the issue of natural law and whatnot: There are all sorts of perfectly good philosophies on which to base one's personal opinions. But I subscribe to the quaint notion that judicial rulings should be based on the law as written.

R C Dean|6.9.05 @ 12:31PM|#

I'd strongly prefer no government spending, but you don't get that many choices and my medical insurance payments were killing me.

Isn't it convenient when your policy preferences for how tax money should be spent also happen to line your own pockets?

R C Dean|6.9.05 @ 12:35PM|#

But I subscribe to the quaint notion that judicial rulings should be based on the law as written.

That would make you a strict constructionist. Pretty lonely, ain't it?

While everyone is a strict constructionist when the words on the page give them the results they want, few people are strict constructionists when it means they will lose.

All the other philosphies do come into play even for us principled strict constructionists, because appellate cases are often about applying law in cases where it is not obvious what the words on the page mean when taken out into the big bad world. Gaps and ambiguities abound, so even a strict constructionist needs a jurisprudence.

|6.9.05 @ 12:53PM|#

People for the American Way apparently didn't like this statement (they saw fit to quote it twice):

"Big government is not just the opiate of the masses. It is the opiate. The drug of choice for multinational corporations and single moms; for regulated industries and rugged Midwestern farmers and militant senior citizens."

People for the American Way is apparently in favor of corporate welfare, farm subsidies and wealth transfers to the rich.

As a juror in the case of the people vs Janice Rogers Brown, I'm still deliberating, but I'd hate to see what kind of statements you'd have to make to get the People for the American Way to approve of you.

|6.9.05 @ 12:58PM|#

RC, "Gaps and ambiguities abound, so even a strict constructionist needs a jurisprudence."

One of the ways our legal system provides for these ambiguities is to compel judges to respect precedent.

Janis Rogers Brown has stated that she does not feel compelled to follow bad law "just because it is the law," and that if her hands are tied by previous rulings, she intends to "gnaw through the restraints."

Yep, great judge you've got there. But don't worry, she'll only violate judicial ethics like this when she thinks there's a good reason.

|6.9.05 @ 1:01PM|#

To RC Dean:

My policy preference is as little government spending on both social and military spending, much less than we observe right now in either the US or Canada. I thought my post made that clear. And, no, this preference does not line my pockets, at least in the direct sense that you insinuate. Is your policy preference different than this? Have you found a jurisdiction where I can relocate that follows this preference? Do tell.

Franklin Harris|6.9.05 @ 1:06PM|#

PFTAW had this wonderfully hypocritical quote in its press release following JRB's confirmation:

"She believes we would be better off if we returned to a time when protections like the minimum wage, food safety standards, and Social Security and Medicare were ruled unconstitutional�never mind what voters and elected officials think."

And PFTAW favors abortion rights and gay marriage, no matter what voters or elected officials think. Pot, kettle, etc.

|6.9.05 @ 1:20PM|#

I don't know how she'll turn out, but joe, if her gnawing through restraints is done to restore much of the constitution, and rein in the federal gov't a bit, then I'll probably be ok with that.

But I'm not holding my breath one way or the other.

|6.9.05 @ 1:39PM|#

Yeah joe

Shoulda left that Dredd Scott and Plessy precedent alone eh? Things'd been so much better if they had.

|6.9.05 @ 1:39PM|#

I think I just called Julian Sanchez a shill. That was a mistake, and I apologize. I don't believe he's shilling for JRB, I believe he really supports her. But my point was that business interests fund libertarian organizations so that libertarians will make principled arguments against non-business interests, and will dress up Republican power politics in the garb of libertarian principle.

JRB will not adjudicate against business interests. She will, of course, strike brave and principled libertarian stands against non-business interests who want to use the power of the state for their own benefit. The effect is libertarian organizations shilling for big business, but that is an effect, not the intent of the libertarian water-carriers (in most cases).

I hope somebody will prove me wrong on the specific question of JRB. Can anybody site instances where she's ruled against business interests on libertarian grounds?

David Nieporent|6.9.05 @ 1:41PM|#

I'm sorry, Nice Guy, is it unfair to tag libertarians as opposing laws that protect employees, consumers, and the environment?

Yes, Joe, it is.

It might be fair to say that libertarians oppose laws that _liberals claim_ will protect employees, consumers, and the environment -- although even that is certainly too broad, as (for instance) laws against fraud certainly protect consumers, and libertarians certainly don't oppose them.

Minimum wage laws don't "protect employees."


Janis Rogers Brown has stated that she does not feel compelled to follow bad law "just because it is the law," and that if her hands are tied by previous rulings, she intends to "gnaw through the restraints."
Yep, great judge you've got there. But don't worry, she'll only violate judicial ethics like this when she thinks there's a good reason.

You're trolling again, Joe. Stare Decisis is not an "ethical" rule. It is merely a pragmatic rule.

MP|6.9.05 @ 1:47PM|#

Yep, great judge you've got there. But don't worry, she'll only violate judicial ethics like this when she thinks there's a good reason.

You mean like Clarence Thomas and Raiche?

|6.9.05 @ 1:48PM|#

joe,

I think that's refreshing. The willingness to set aside bad (that is, unconstitutional) precedent is what makes Thomas a good judge and Scalia a hypocrite. I know that precedent is important, but the fact is, many, many past decisions have totally disregarded constitutional limits on goverment. The constitution is the final word.

This is only partially related to Judge Brown. She seems to get this better than most judges, but the "natural law" talk makes me a little nervous.

|6.9.05 @ 1:48PM|#

Lowdog, bob,

Thanks for, once again, demonstrating that the right's blathering about judicial procedure is a load of crap. Federalism? Respecting precedent? Deference to the legislative branch? Minimialism? How quickly those all go out the window.

Xmas|6.9.05 @ 1:48PM|#

I like this Pro-Brown column from that bastion of Conservatism, the Village Voice:

http://www.villagevoice.com/news/0520,hentoff,63997,6.html

|6.9.05 @ 1:54PM|#

Well, I'm not on "the right". I'm pro-freedom and pro-constitution. That puts me at odds with both righties and lefties, about 9 times outta 10.

And let me go ahead and admit that just about anybody could run circles around me when it comes to constitutional and case law, so I guess I'm just all touchy-feely on this stuff. But I still think that, although precedent can be a good thing, as Steve said, there's been plenty of times where the judicial branch was just plain wrong on whether something was constitutional or not. If some of those things were reversed, we'd be in better shape.

|6.9.05 @ 1:56PM|#

Steve,

"The constitution is the final word."

And when there is a question about the proper application of the Constitution to a specific set of facts, judges are directed to make a judgement call.

They make these judgement calls by examining past cases and applying the principles enunciated therein.

On occasion, a previous case will have been so egregiously decided that the extreme action of a complete reversal is called for. Responsible judges consider this to a last resort, to be used only in extreme circumstances - not the foundation of a judicial philosophy.

|6.9.05 @ 2:05PM|#

Ahhh precedent. The concept that what other judges, in a different situation, with less information, were so much better at interpreting law that they should be deferred to in almost all circumstances.

|6.9.05 @ 2:17PM|#

"They make these judgement calls by examining past cases and applying the principles enunciated therein.

On occasion, a previous case will have been so egregiously decided that the extreme action of a complete reversal is called for."

Much of the difference in opinion lies in the word 'egregious'. To many folks around here, it doesn't get any more egregious than to say that interstate commerce grants the federal government unlimited regulatory powers. But, hey, that's the precedent.

|6.9.05 @ 2:22PM|#

I just ran across this: http://www.thecarpetbaggerreport.com/archives/4062.html
while looking for JRB's views on Natural Law.

"California Supreme Court Justice Janice Rogers Brown told an audience Sunday that people of faith were embroiled in a "war" against secular humanists who threatened to divorce America from its religious roots"

"She described these as "perilous times for people of faith" in the United States; she insisted the "idea of human freedom" is undermined when we move away from the nation's alleged religious underpinnings; and she condemned atheists for rejecting the "idea of freedom.""

Anyone know if there's any truth to this or whether these quotes are taken completely out of context? If so, I'm less thrilled than I was when I read the PFTAW quotes.

|6.9.05 @ 2:42PM|#

Given the assholes who don't like her (including those posting here), I'd bet she's a damn good choice.

Next, we can fisk Thomas Jefferson and his views of god given rights.

|6.9.05 @ 2:42PM|#

"Atheistic humanism has handed human destiny over to the great god autonomy.... Freedom then becomes willfulness."

Boooooo...

|6.9.05 @ 2:45PM|#

metalgrid-

Dammit! Why is it that any public official willing to talk about freedom and limited government and the Constitution almost invariably wants to mix religion and law?

I really hope that quote is out of context. If it isn't out of context, well, we can always debate about the trade-offs involved and whether it's worth it. But it would be really, really nice if just once there wasn't any trade-off. If just once we could get somebody who's actually good from a libertarian perspective.

Well, there is Judge Posner. And Judge Kozinski. I don't know what their personal opinions are on religion, but they seem to be pretty bright and pretty libertarian.

|6.9.05 @ 2:48PM|#

thoreau,

The quote I posted looks pretty bleak. However, I haven't seen any evidence of her religion seeping into her decisions yet. Hopefully that will remain the case.

|6.9.05 @ 2:49PM|#

"Atheistic humanism has handed human destiny over to the great god autonomy.... Freedom then becomes willfulness."

Damn! Sounds like she'll be gaius marius's favorite judge.

I mean, is it too much to ask to have some cool, mellow, but really frickin smart judge who wants to leave people alone for the most part? Who thinks it's cool to just leave people alone if they aren't hurting anybody? Who doesn't feel any need to lambast society for not being sufficiently religious?

|6.9.05 @ 2:52PM|#

I mean, is it too much to ask to have some cool, mellow, but really frickin smart judge who wants to leave people alone for the most part? Who thinks it's cool to just leave people alone if they aren't hurting anybody? Who doesn't feel any need to lambast society for not being sufficiently religious?


I think all those people are in jail for possession of pot.

|6.9.05 @ 3:04PM|#

According to Wikipedia, "She was the lone justice to contend that a provision in the California Constitution requires drug offenders be given treatment instead of jail time."

She's a tough one to nail down, isn't she? Not even taking into account her politics, she seems really frickin' smart and widely-read, and that's hard for me to square with her fire and brimstone culture speech from April. She also seems to support evolution, judging by some of the names she dropped in that speech linked above. Janice Rogers Brown, who are you?

|6.9.05 @ 3:20PM|#

I'm going to set my expectations for her fairly low, so that if she does good then I can enjoy a pleasant surprise.

|6.9.05 @ 3:20PM|#

I think her being so nuanced bodes well. For instance, we have the good Dr thoreau here. He seems quite nuanced. ie, came to libertarianism from the left, has a Phd in physics but is still obviously well-read in "liberal arts", does charity work, is a self-described christian but who doesn't get preachy, etc, etc.

So I think it says that whatever her beliefs, her intellect can usually keep them in check.

Of course, this is wishful thinking on my part, and whether it holds true or not remains to be seen.

|6.9.05 @ 3:25PM|#

The natural law stuff makes me nervous, too. I am hoping JRB is trying to get at something similar to somethig somebody said recently:
"Obviously, at some meta-level, your reading of the scope of constitutional rights and powers is going to be informed by some assessment of the consequences. I don't think it's reasonable to read the First Amendment as making laws against fraud or murder threats impermissible, even if some kind of hyper-literal construction might entail that."
Fundamental questions like is-fraud-bad-or-good, what-is-a-person, what-is-harm, what-is-injury are relevant in Constitutional analysis, but the Constitution does not answer them. Maybe this is the job JRB has in mind for Natural Law?

PintofStout|6.9.05 @ 3:32PM|#

"She described these as "perilous times for people of faith" in the United States; she insisted the "idea of human freedom" is undermined when we move away from the nation's alleged religious underpinnings; and she condemned atheists for rejecting the "idea of freedom.""

Tell that to those poor, unamerican witches in Salem.

|6.9.05 @ 3:39PM|#

Jason Ligon,

"Much of the difference in opinion lies in the word 'egregious'. To many folks around here, it doesn't get any more egregious than to say that interstate commerce grants the federal government unlimited regulatory powers. But, hey, that's the precedent."

I don't want her off the bench because we differ on what precedents we disapprove of. I want her off the bench because of her transparent eagerness to run roughshod over precedent. Judges are supposed to respect precedent, and treat the reversal of established law as an extreme act to be used rarely, carefully, almost regretfully. She doesn't - she's eager to increase her power, because she's eager to get in there and start hacking away at established law she doesn't like.

Sometimes, a pitcher has to throw at a guy. That's baseball. But a pitcher who does it all the time, and who talks about how eager he is to throw at people, shouldn't be playing the game.

|6.9.05 @ 3:40PM|#

Tell that to those poor, unamerican witches in Salem.

I doubt those witches were atheist and thus anti-freedom ;)
They were christian themselves and cannibalized by their own sectarians.

|6.9.05 @ 3:43PM|#

Religion is always tricky, isn't it? Any society based on individual liberty and personal responsibility will benefit from religion, simply as the most effective way (imo) to order one's own behavior. The problem is always when religion compels you to order other people's behavior.

Currently there is a battle between two extremes. On the one side, we have those who feel that religion is synonymous with idiocy and bigotry. On the other side we have those who feel that everyone else must be made to obey their personal religious beliefs. Anyone in a position of power in this country has to walk a thin line between the spiritual and the secular.

Can JRB do that? I'm not sure. I am certainly wary of her appointer and some of her religious quotes, but she does seem to understand that the limits of government power have been largely destroyed. The real question, as it is for so many on the right, is whether or not those limits will apply equally to their personal desires. So far, the Bush admin has done very poorly in that area, but I'm willing to give JRB the benefit of the doubt for the moment.

|6.9.05 @ 3:54PM|#

joe,

How should this work, in practice? If you're a judge, and you're faced with a case where you think the law is unconsitutional, but precedent says it's OK, how would you decide? If you think the law is only a little bit unconstitutional, do you go with precedent?

MP|6.9.05 @ 3:55PM|#

Judges are supposed to respect precedent

An easy position to take when precedent conforms to your view as to the role of Government. However, if one has an intellectually solid, strongly defensible viewpoint as to the Constitution (a la Randy Barnett), I applaud them for openly and aggressively seeking to correct what they consider to be the mistakes of the past. Is this embodied in JRB? Time will tell...

MP|6.9.05 @ 3:57PM|#

Sorry...I should have also provided the obilgatory "let's hump Randy Barnett's book" link.

|6.9.05 @ 4:20PM|#

Steve,

If you think the whole world is crazy and you're the only sane one, you should seek help. Or at least, not work to accumulate enough power to be able to make everyone "sane" again. If you do try to accumulate such power, responsible people will try to stop you, not enable you.

Maybe Ms. Rogers Brown shouldn't be assuming that she's the only one who loves America and freedom and opposes slavery. She wants to wage war against the judiciary from within, not on controversial issues, but on broadly accepted legal precedent that has the support of both most of society, and the overwhelming majority of the judiciary.

MP, "An easy position to take when precedent conforms to your view as to the role of Government." No easier than taking the opposite position when precedent is at odds with your view as to the role of government.

Our judicial system is not neutral to precedent. Judges are supposed to respect precedent except in rare, extreme circumstances, whether they like past courts' decisions or not. If you don't like those rules, you shouldn't be a judge, because that is how judges are supposed to operate.

|6.9.05 @ 4:21PM|#

There's a pragmatic question to ask when advocating an overturn of precedents:

It's all well and good to agree that most of what the feds do is unconstitutional.

So, let's say that an Ideal Libertarian Judge is faced with a case involving some guy who refused to pay his Social Security taxes. (Assume that he's self-employed, so there's no boss to automatically deduct it from his check.)

Now, we all know how the Ideal Libertarian Judge (ILJ) should rule. But I can think of 2 reasons why the ILJ might get cold feet:

1) The cowardly reason: The inevitable upheaval and subsequent impeachment proceedins.

2) The slightly better reason: Such a drastic change, no matter how Constitutionally sound, should come from the legislature. Just from a pragmatic standpoint, to avoid massive upheavals social security would have to be phased out rather than canceled overnight. If a judge orders cancellation he's acting from sound (but explosive) Constitutional principles. If he orders a gradual rollback and specifies a schedule for payments to decline he's getting involved in details of public policy and acting from his own judgements about public policy rather than principles. Which isn't always bad (judges sometimes have to exercise judgement), but with that level of detail and that much at stake, maybe it should be handled by the other branches of government.

I guess my main point is that if judges are going to overturn massive government programs, they have to either face big upheavals (e.g. a hell of a lot of people base their plans on Social Security, and wouldn't give up quietly if SS were overturned) or else phase out the programs over time, which means they'll have to make the sort of judgement calls that legislatures usually make (e.g. levels of funding, time-tables for ending the program, etc.).

So I wonder if even an Ideal Libertarian Judge would really be willing to go the final step and start overturning programs. More likely they'll simply work at the margins. Which might be all we should expect from judges. But I throw this out as something to chew on: How far should even an idealist go?

|6.9.05 @ 4:25PM|#

Jesus H. Effing Christ in a sidecar, joe. I asked a reasonable question about constitutionality vs. precedent, and you turn it into "JRB is insane."

Take a deep breath and try to follow me here: I can't speak for JRB, but personally, I don't think people who disagree with me on the commerce clause hate America. I just think they're wrong about the commerce clause. Can you even enterain the idea that a "broadly accepted precedent" can be wrong?

gaius marius|6.9.05 @ 4:26PM|#

Sounds like she'll be gaius marius's favorite judge.

she has a point, mr thoreau -- but has misidentified the source of the problem. it's not about humanism abandoning religion; it's idealism abandoning experience that corrupts freedom.

indeed, i suspect she's precisely inverted the issue. what passes for faith in the united states today is unaffiliated with religion in the institutional, deeply conservative sense. there is no religious institution in american life; only personality cults centered on people like james dobson and pat robertson. putting "religion" back in the center of public life at this point is to deal the deathblow to law and tradition that one would ostensibly be trying to deflect by empowering these ideologues and their solipsistic biblical interpretations.

|6.9.05 @ 4:26PM|#

Before joe jumps all over me for saying that it's cowardly to uphold Social Security, the post was written from the premises of a libertarian purist, to ask just how far a judge should really go even if you accept all of the premises of a libertarian purist. If the only thing that matters is being correct and ruling in a way that maximizes liberty then sure, go ahead and rule against 95% of what the feds do, and say that they're exceeding their enumerated powers.

But if you worry about real world consequences then maybe judges should show some restraint in approaching these matters.

|6.9.05 @ 4:35PM|#

"Judges are supposed to respect precedent, and treat the reversal of established law as an extreme act to be used rarely, carefully, almost regretfully. She doesn't - she's eager to increase her power, because she's eager to get in there and start hacking away at established law she doesn't like."

We just have different ideas about what judges are supposed to do. Precedent should lose every time to a judge's clear understanding of constitutionality. Respecting the precedent of Jim Crow is bad. It is bad because it is a clear violation of equal protection. Saying that no other part of the constitution that limits the power of government has any weight whatsoever under the ICC is AT LEAST as egregious.

gaius marius|6.9.05 @ 4:36PM|#

If you think the law is only a little bit unconstitutional, do you go with precedent?

the point of institutions, mr steve, is specifically to prevent people from coming in -- regardless of their ideology -- and reinterpreting how the society should work on untested, reductive and unworkable ideological lines.

change is slow -- and should be slow -- to prevent individuals with ideas that seem good on paper from annihiliating a working society for an unworkable utopian one in one fell swoop.

if this is true

Janis Rogers Brown has stated that she does not feel compelled to follow bad law "just because it is the law," and that if her hands are tied by previous rulings, she intends to "gnaw through the restraints."

her appointment is a defeat for the rule of law -- because a law unaffiliated with history and the wisdom of our forebears is not a law at all. it's an experiment.

|6.9.05 @ 4:41PM|#

"But if you worry about real world consequences then maybe judges should show some restraint in approaching these matters."

A judge that cares about consequences should rule on a smaller program based on similarly weak ICC foundations as a bigger program, thereby signaling where each related case will fail when it is brought before the court. Congress then has a mandate to start making plans.

MP|6.9.05 @ 4:49PM|#

thoreau, as an aside, it appears that the Kansas Supreme Court doesn't much care about massive upheavals. It is one of the more despicable school funding decisions I've ever heard of. I hope someone has the nuts in the Kansas legislature to tell the SC to get f*cked and start an all out Constitutional brawl, bringing back the fun of the 1850's.

gaius marius|6.9.05 @ 4:51PM|#

Precedent should lose every time to a judge's clear understanding of constitutionality. Respecting the precedent of Jim Crow is bad. It is bad because it is a clear violation of equal protection. Saying that no other part of the constitution that limits the power of government has any weight whatsoever under the ICC is AT LEAST as egregious.

so should she ignore freedom of assembly if her "understanding of constitutionality" doesn't recognize it? mr ligon, this is a thin branch you're on.

there's a fundamental fallacy in constitutional originalism. there is no correct interpretation of the document, no universally agreed-upon original concept. it meant many things to many people even in the 18th c -- and for virtually no one was the uninhibited expression of the will of the people even desirable, much less intended by the design. the notion of an "original" interpretation is simple bordering on stupid, frankly -- reductive historical revisionism as an excuse to radically revise american law on contemporary ideological lines.

we may agree that jim crow was bad. the process of its removal took a great deal of time and struggle, but working changes through the institutions of law ensured that the pace of change remained slow enough to allow time to test the principles. people forget that the several (all?) of the text of the constitution would have been nullified entirely at some time or another long ago under duress if the system allowed quick changes to be made to suit the mood.

to simply point at jim crow and say "precedent is bad" is to commit the sin of survivorship bias; institutional pace turned back several destructive reform ideas as it slowly allowed jim crow to be reversed.

|6.9.05 @ 4:51PM|#

Jason-

So, the way I interpret your post, the best approach would be that judges would refuse to touch the big, popular program. But if a case involving a smaller program came up, the judge on the first rung of the ladder would rule however he or she rules, and then the appellate court judge could make a more radical ruling on this smaller program. This would send signals that policy-makers could use to prepare for possible changes to bigger programs.

Seems reasonable. Still radical, but not as radical as every American waking up one morning to learn that some judge unexpectedly threw out Social Security.

|6.9.05 @ 4:58PM|#

The earlier quote from Joe:

"Judges are supposed to respect precedent, and treat the reversal of established law as an extreme act to be used rarely, carefully, almost regretfully."

One quick replacement..

"People are supposed to respect precedent, and treat the reversal of established norms as an extreme act to be used rarely, carefully, almost regretfully."

Sounds sorta like something a hardline conservative would say about the changing face of culture or something, isn't it?

gaius marius|6.9.05 @ 5:00PM|#

the best approach would be that judges would refuse to touch the big, popular program.

Seems reasonable.

no it doesn't! mr thoreau -- surely you can see that this is not the rule of law! it is rule by populist fiat!

are there really people here who are still so young and naive as to believe that we all don't need to be protected from our own worst impulses by institutions that guard the law?

|6.9.05 @ 5:06PM|#

gaius-

Can you say with a straight face that a ruling against a social welfare program is populist? Fiat, sure. Populist? Hell no.

|6.9.05 @ 5:10PM|#

"Can you even enterain the idea that a "broadly accepted precedent" can be wrong?"

Oh, absolutely, it can be wrong. But judges are supposed to defer to precedent, treat the established body of law with great deference, not assume that large swaths of appellate and Supreme Court decisions, ones that have formed the basis of how the government operated for decades, were again and again and again wrongly decided.

gaius marius|6.9.05 @ 5:17PM|#

i fear so, mr thoreau, because -- as any dictator worth his salt can tell you -- some segment of the proletariat can be fooled into thinking just about any bullshit is essential for the good of the people.

if you went to the RNC last year and said, "social welfare must be destroyed!", you'd have had a grassroots army at your disposal, ready to save america. i know populism in america has been tagged with communist leanings, but we should remember that hitler and mussolini were populist leaders.

populism was leftist late last century because the people were then inherently social, utilitarian and empirical -- children of mill, as it were. that has changed, as part and parcel of what i constantly harp on -- the rejection of reality for personal fantasy, emancipation and idealism.

gaius marius|6.9.05 @ 5:35PM|#

judges are supposed to defer to precedent, treat the established body of law with great deference, not assume that large swaths of appellate and Supreme Court decisions, ones that have formed the basis of how the government operated for decades, were again and again and again wrongly decided

exactly, mr joe. this provides continuity and predictability to a system of laws that allows corporations to plan future activity and people to gain familiarity with their way of life.

institutions allow laws to change as what is perceived to be bad changes over time. they simply ensure that the changes are not impulsive, ill-considered and untested.

|6.9.05 @ 5:45PM|#

>I mean, is it too much to ask to have some cool,
>mellow, but really frickin smart judge who wants to
>leave people alone for the most part? Who thinks
>it's cool to just leave people alone if they aren't
>hurting anybody? Who doesn't feel any need to
>lambast society for not being sufficiently
>religious?

Yeah, who are they to judge?

Seriously, a person who 'wants to leave people alone for the most part' is not likely to seek the office of judge. You get paid more staying in corporate law.

|6.9.05 @ 6:15PM|#

It is a question of primary vs. ancillary function, mr. gaius. Precedent should not prevent any judge or justice from ever rendering a decision that is in their view correctly what the constitution says. The appeals process, multiple cases, and ultimately a 9 person Supreme Court are designed to prevent one errant interpretation from going wild.

The conservative function of the court is completely of secondary importance. Just as a casual observation, what sort of regulation would now require an amendment? If the status quo interpretation we are supposed to be so respectful of is one that flushes whole swaths of the constitution and even renders the amendment process moot, you are suggesting precisely that we engage in populism as policy. The status quo interpretation of ICC and General Welfare allows any current regulatory body to do near anything they want. We have removed the inertia of constitutional justification. That is what you are arguing to preserve.

As I mentioned before, I'm no romantic when it comes to originalists vs. activists. I more or less accept that judges and justices will make a decision and justify post hoc. I am making a statement that appeal to a precedent that was itself horribly argued is uncompelling on either a practical or philosophical level. I am also saying that I choose to support judges that want the things I don't like to go away, fully expecting everyone else to do the same. I mean, really. Can you imagine all this whiny talk about precedent from the left prior to the New Deal?

|6.9.05 @ 6:26PM|#

Sharecropper's Daughter
Sharecropper's Daughter
Sharecropper's Daughter
Sharecropper's Daughter
Sharecropper's Daughter
Sharecropper's Daughter
Sharecropper's Daughter
Sharecropper's Daughter
Sharecropper's Daughter

gaius marius|6.9.05 @ 6:53PM|#

But both tendencies spring from the same root and neither is preferable.

i don't know about that. pie-in-the-sky leftism -- yes, i agree. but the american proletariat of that time wasn't communist/anarchist -- they were utilitarian, and there's an immense difference. latter-day idealism, unlike utilitarianism, isn't based in any reality.

reinterpretation of the federal role during the progressive and new deal eras

certainly i'd be happy to see the concept of the executive rolled back (it always makes me laugh to hear cheney lie openly about the decline of the executive -- what self-serving horseshit!) but, if its going to be done, do it through the instituion -- slowly, in measured steps. break the system apart and reconstitute it as you think might be fit? that's a recipe for disaster, the exact opposite of the rule of law one would hope to reinforce.

gaius marius|6.9.05 @ 7:23PM|#

Precedent should not prevent any judge or justice from ever rendering a decision that is in their view correctly what the constitution says.

i can't tell you how profoundly that contravenes the notions of institutional law. you've the order exactly wrong, mr ligon. have you never studied institutions?

the precedent is the product of the accumulated wisdom of the judicial system over two centuries. you would toss that out because a judge gets an idea about what he believes the founders might have had in mind?

this goes straight to the heart of what i'm always going over here -- the rejection of history, wisdom and tradition for the unproven, irrational, speculative individual idea. i know many agree with you, mr ligon -- but that opinion is why western civ is dying.

If the status quo interpretation we are supposed to be so respectful of is one that flushes whole swaths of the constitution and even renders the amendment process moot, you are suggesting precisely that we engage in populism as policy.

the core problem is that so many have utterly no faith in our forebears, institutiuons and history. the institution of the judiciary is designed to accumulate their wisdom in precedent. and yet you cannot trust them -- all of our history is a subversion of The True Meaning, and your momentary notion of what the constitution is supposed to mean trumps two centuries of collected thought and experience.

isn't that the very definition of a radical idealist judiciary?

constitutional originalism is a joke for this reason -- a very sad joke. the "original meaning" isn't original at all, and isn't particularly pertinent either. it's an idealized recreation cast of postmodern ideas of what we think the founders must have meant! it has no basis in fact or experience!

the experience of the nation is in that mountain of precedents, not some postmodern mock-up of james madison! denying the validity of our history and experience -- not just what you think the founders meant, but the WHOLE experience -- is the surest way to destroy this nation.

|6.9.05 @ 7:38PM|#

gaius:

I think there are obvious reasons to be skeptical that we are sitting on 200 years of collected wisdom. What we are sitting on is case after case that appeal ultimately only to certain specific Warren Court decisions. To appeal to precedent as a primary function isn't to respect collective wisdom, it is to regurgitate a series of bad decisions, made by a single court under duress over and over again, then to use the mere fact that we did so as a guarantee that we will continue to do so.

|6.9.05 @ 7:40PM|#

gaius-

I actually have some sympathy for your point, but only a certain amount of sympathy.

The thing that a lot of people here object to is the notion that the Interstate Commerce and General Welfare Clauses can be interpreted as blank checks.

It's not like this notion came about from the deliberations of sages trying to properly implement the Constitution in accordance with tradition. Rather, it came about in large part as the courts capitulated to larger forces. The political winds were blowing in the direction of a larger federal government, frequently due to populist pressures. The courts capitulated because, well, if they hadn't they would have been rendered powerless by the politicians. Does the phrase "court-packing" ring a bell?

Not to mention that Presidents began to nominate judges who were sympathetic to these expansive readings of the 2 clauses in question, and the Senate had no problem confirming such judges.

All this in response to populist pressure.

Now, I do see a certain amount of virtue in this capitulation, believe it or not: The courts decided that it was better to bend than to be broken. Fair enough.

Now, some judges want to push back. Or at least they claim that they do. Personally, I see some dangers from it. I gave the example of a hypothetical judge throwing the nation into chaos by striking down Social Security. While I believe that in the long term society could adapt to free market retirement, in the short term people might actually riot, and so change will have to proceed slowly.

So I agree that pushing too far in the other direction would be an error (at least if it comes from the judiciary). But let's be clear about the nature of the error:

It's NOT the rejection of a sound Constitutional interpretation in favor of personal whim. While reasonable people might disagree over the proper interpretation in tricky cases, it's by no means reasonable to think that the Interstate Commerce and General Welfare Clauses render the rest of the document meaningless.

Rather, the error is that more traditionalist rulings might provoke a populist backlash. Again, we can differ over what the proper interpretation would be. I don't buy the notion that there's a single, objective, and unambiguous way to interpret the Constitution. (Hell, even the people who wrote it had disagreements.) But it's one thing to disagree at the margins in hard cases. Or even to have profound disagreements on particular matters. It's quite another thing to think that those 2 clauses render the rest of the document meaningless. Whatever else reasonable people might disagree on, that basic notion is sound.

So, when some judges want to get back to the notion of enumerated powers I don't see them as flouting tradition in favor of whim. I don't see them as rejecting the wisdom of the ages in favor of populism. Rather, I think they're under-estimating just how dangerous a populist backlash would be.

Short version: Big changes will have to come from Congress, not the courts.

|6.9.05 @ 7:49PM|#

I said Warren Court. I didn't mean Warren Court. I meant the court that FDR bullied.

|6.9.05 @ 7:54PM|#

Just to emphasize the most important point of my long post:

I agree with gm that it's a conceit to think that there's always a single, unambiguous, objectively correct way to interpret the Constitution in all cases. Even the people who wrote it had disputes. And in the presence of ambiguity there is much to be said for precedent!

But we're not talking about precedents that were formed in response to ambiguity. We're talking about precedents formed in response to populist pressures. Namely, the precedent that the Interstate Commerce Clause and General Welfare Clause are blank checks that render everything else (including the amendments) absolutely meaningless.

As far as I'm concerned, the only reason to not overturn those precedents is the danger of a backlash, either a populist backlash (Florida and Arizona breaking into riots when Social Security is abolished) or a backlash from the other 2 branches (impeachment by the House and conviction by the Senate within 24 hours of drug prohibition being overturned, followed by immediate detention at Gitmo as "enemy combatants").

Now, those are significant concerns, but we should be clear about the nature of the error. Judges who seek to overturn New Deal precedents aren't rejecting accumulated wisdom used to cope with ambiguous cases. Rather, they're courting a populist backlash. A significant danger, but let's at least be precise about the nature of the danger.

|6.9.05 @ 7:55PM|#

Jason-

From my admittedly meager legal knowledge, I have more respect for Warren Court precedents than for New Deal precedents. Which is not to say that I agree with every Warren Court precedent, but expansive rulings on civil liberties and equity both me less than declaring that the entire Constitution is rendered meaningless by 2 clauses.

|6.9.05 @ 9:46PM|#

gaius et josephus,

Let me put it this way. If the judicial branch suddenly has a libertarian conversion experience, and begins striking down govt programs left and right, and basing its decisions on a hyper-individualist interpretation of the Constitution...and you come along 50 years later, when all this is established precedent...

Where would be your urge to stick with the slow, plodding institutional rate of change, and your deep respect for precedent? I hate to put words in your mouths, but I suspect you would (rightly) reply that these "precedents" were produced by a court that suffered from a temporary fascination with individualism, greatly at odds with the prior philosophies of the Court. As such, they are less precedents than wild deviations from precedent.

Then you would know how we feel.


The Constitution set up a federal government that couldn't really do much without a pressing need, and the agreement of the executive along with a majority of the states and a majority of the people's representatives.

The problem we've discovered in this century is, once the govt manages to come to agreement on something huge (eg the New Deal), the Constitution's barriers to action make it hard as heck to get rid of.

|6.9.05 @ 9:57PM|#

It's kind of like the climactic sequence of A Nightmare on Elm Street, where the girl futilely attempts to escape from Freddy via a window, only to discover that steel bars have been installed across it.

Had Freddy been a man on the outside trying to get in, the bars would have protected her as intended. But with Freddy inside the house, they served only to lessen her chances of survival.

|6.9.05 @ 10:11PM|#

I have to disagree with crimethink. My concern isn't that we need judges to overturn unconstitutional programs because an abundance of checks and balances are making it impossible to do so by any other means.

It's not like the "Repeal The New Deal Act" is only dying because of a filibuster, or because Congress can't quite get the 2/3 needed to override a veto. In fact, the legislative and executive branches are eager to keep expanding the power of the federal government. So there's hardly an abundance of checks and balances.

Rather, the problem is TOO FEW checks and balances. And the judiciary has exacerbated the problem by signing off on the notion that two clauses in the Constitution render the rest of the document meaningless.

I'm not saying that the judges should repeal the entire New Deal overnight (that might cause a bit of unrest), but it would be nice if they at least backed away from the notion of blank checks. I'd be satisfied if they simply said "Look, what's done is done, and if you want it overturned you'll have to go to the legislative branch. But dammit, no new programs that aren't enumerated powers!"

So, in summary, I think crimethink has it 100% wrong when he complains that we have too many checks and balances. The problem is that we don't have enough.

|6.9.05 @ 10:37PM|#

I like the analogy, crimethink. How much you respect precedent seems to have a lot to do with how much you respect the legal status quo. People who love 2000 precedent might not be particularly fond of 1900 precedent. It's also disingenuous to say that the differences between them were really gradual, well-debated, and evolutionary. Instead, there were a series of individual rulings that upset the legal applecart, just as there would be today if the courts suddenly got serious about limited government. The truth is that Freddy doesn't mind the bars once he's in the house. It's hard to see love of precedent (the most recent precedent anyway) as anything more than approval of the status quo, when you're saying that New Deal versions of case law should be respected, but not any case from the laissez-faire era.

"Look, what's done is done, and if you want it overturned you'll have to go to the legislative branch. But dammit, no new programs that aren't enumerated powers!"

Could you really do that, thoreau? How could you block new powers that are equally or less constitutionally troublesome than stuff already on the books? What explanation does the judge give about why it applies to the new power but not to Social Security? "Because I don't want to piss people off"? How does the judge rule when someone challenges SS to him, using the judge's own words about the new programs?

Well, I suppose he could just fudge some pseudo-logical explanation like judges do now when they get trapped. I guess you have a point.

MP|6.9.05 @ 11:36PM|#

phocion, Barnett gave SCOTUS wiggle room in Raiche. They were given the opportunity to rule for Raiche on the premise that the particular activity Raiche was involved in was non-economic. If they had decided the case in that manner, that would have been a good example of the "no new programs" way of acting that thoreau speaks of. Instead, they not only re-affirmed Wickard, they expanded it. Raiche may likely go down as the biggest SCOTUS decision since Roe vs. Wade.

|6.10.05 @ 1:48AM|#

Phocion-

I gave a bad example, but what I was trying to get at is the possibility of middle ground between the status quo and our ideals. The status quo is using two clauses of the Constitution to render the rest of it meaningless. Our ideal is, of course, strict adherence to enumerated powers. The status quo is clearly unacceptable (ever-expanding federal power), but any judge who strictly applied the concept of enumerated powers to social security would touch off a riot. And any court who applied the concept of enumerated powers to the drug war would find himself impeached and declared an enemy combatant.

But I refuse to believe that these are the only options from the third branch of government. I don't believe that the third branch of government is generally the best place to touch off a vastly unpopular revolution, but surely the third branch of government can play a role in a movement toward smaller government. I'm no legal scholar, so I don't claim to know the best way to do it, but I throw this notion out there.

gaius marius|6.10.05 @ 10:24AM|#

To appeal to precedent as a primary function isn't to respect collective wisdom, it is to regurgitate a series of bad decisions

that's only if you're of the faith -- faith, mind you -- that the prior decisions are "bad" -- which is itself not a judgement of empiricism but ideal morality.

don't get me wrong, mr ligon -- i might agree with you. i might feel that the decisions made by the court under the duress of executive authoritarianism in the trials of the first half of the 20th c have done great damage to the republic.

but the way to reverse that is not to ideologically impose reductive New Ideas. you may believe you understand the owrkings of government well enough to tailor and reconstruct the law to fit an ideal -- to turn back the clock, as it were -- but you don't. no one does. human societies are quite complex, and the past is not the same as the present, despite the similarities that we see and the patterns which recur. lex ferenda is superior to lex lata only if you believe the unevidenced ideal is better than that which has happened -- which may even sometimes be so, but you have no evidence for it.

again, you see my point about living in the complex empirical world as it is, instead of the reductive idealistic world you imagine?

moreover, to make large changes -- to provide a large disturbance to a complex system -- is to invite reactions in the system which cannot be foreseen. institutional law does change -- but it does so incrementally. if you want to change the law, do it slowly. it cuts down on unintended consequences.

gaius marius|6.10.05 @ 10:35AM|#

The courts capitulated because, well, if they hadn't they would have been rendered powerless by the politicians. Does the phrase "court-packing" ring a bell?

more traditionalist rulings might provoke a populist backlash.

i think, mr thoreau, you answer for yourself why these things were done. fdr could never have done what he did in an aristocracy; they'd have killed him. in a democracy, he could appeal to the people -- and did.

this is the weakness of democracy -- no law stands before the popular will, and law as a concept is quickly destroyed.

but you must see that to reverse the flow radically and suddenly -- to rewrite whole sections of the law, even if in a direction you believe to be a prior incarnation -- is not law nor tradition! it is the recreation of a vanished past by idealization -- and that past is not the same as our present, as you know.

if you disagree with the recent past and want to work toward that idea, do so -- but slowly, not simply ignoring any precedent you find too distant from the ideal you envision. strike compromises! the moderation and continuity that will result is the crux of effective institutional law.

gaius marius|6.10.05 @ 10:43AM|#

Where would be your urge to stick with the slow, plodding institutional rate of change, and your deep respect for precedent? I hate to put words in your mouths, but I suspect you would (rightly) reply that these "precedents" were produced by a court that suffered from a temporary fascination with individualism, greatly at odds with the prior philosophies of the Court. As such, they are less precedents than wild deviations from precedent.

Then you would know how we feel.

mr crimethink, i generally agree with your interpretation of events. and if said example occurred, i would be appalled....

... but what i would NOT do, should the opportunity avail itself, is immediately ignore all those precedents. to do so is to commit the same sin in the service of the other ideology! and that can only lead -- as it already has begun to -- to partisan rancor, entrenchment and eventually civil violence.

there must be a healthy dose of restraint in effective rulership, and institutional processes for change must be respected if one wishes to avoid anarchy and destruction. even if my ideals are not embodied in the law as it is, i refuse to junk the processes of modest change for quick fixes borne of desperation -- for what i would ideally fight were indeed that very thing when they were done.

that so many libertarians believe in fact that this is what should be done says much about how far "reason" is from reason, and how ideological and idealistic libertarianism really is.

|6.10.05 @ 10:45AM|#

Steve,

I don't think Judge Brown is insane. I was using sanity as a metaphor for sound legal reasoning.

gaius marius|6.10.05 @ 10:52AM|#

It's hard to see love of precedent (the most recent precedent anyway) as anything more than approval of the status quo, when you're saying that New Deal versions of case law should be respected, but not any case from the laissez-faire era.

only if, mr phocion, you're obsessed with the ideal ends and ignorant of the value of the pragmatic process.

i am no fan of the new deal and the imperial presidency. but such as it exists, it was allowed to come into existence because of the breakdown in the respect for tradition and institutional processes that followed the disasters of the early 20th c. that panic -- and panic is what it was -- sent western bourgeoisie and proletariat alike into flight from reality and history, law and tradition. ironically, the slow and steady deterioration in western institutions that was a result of that flight has only reinforced their fall from grace in popular eyes.

the re-establishment of those institutions would be all-important to the resuscitation of western society. but, as you might imagine, i'm extremely cynical that such will happen. as we're seeing here, even the side that claims to be the inheritors of locke and hume is too idealistic to see value in modesty and limitation.

|6.10.05 @ 11:02AM|#

"It's hard to see love of precedent (the most recent precedent anyway) as anything more than approval of the status quo, when you're saying that New Deal versions of case law should be respected, but not any case from the laissez-faire era."

I don't think you understand my point - I'm not holding up respect for precedent as the fundamental organizing principle for society (as gaius is). The People, the Congress, and the President should let their freak flags fly, man. My comments are specific to how the judiciary should work.

But as for "New Deal" vs "laissez faire era," your comment seems to overlook the rather significant fact that the New Deal and Warren court decisions came AFTER the "laissez faire" era. The legal status quo was what it was at the time of the founding, and then went through an evolutionary process that incorporated past precedent, but gradually changed it as the world changes and the application of the principles of the Constitution had to change with it.

This is what a judicial branch does. If you want the courts to operate in any other way, such as the precedent-busing iconoclasm advocated by Jason Ligon, what you are saying is that we should cease to have courts as they have existed since Anglo-Saxon times, and have some other system instead. Now THAT is thumbing your nose at the Constitution - the men who wrote and endoresed it knew what a judiciary was, and made sure to include one in their system.

|6.10.05 @ 11:44AM|#

gaius-

I think we more or less agree. It would be neither feasible nor wise for the courts to strike down the New Deal in one fell swoop. Obviously most of that change should come from the other 2 branches. But I don't think that means the third branch must simply accept the "blank check" interpretations of the General Welfare and Interstate Commerce Clauses. Surely there must be some middle ground where the courts could start to slowly rein in excesses and reject the most egregious precedents, without completely reversing everything that has happened.

Can we agree on that?

gaius marius|6.10.05 @ 12:02PM|#

Can we agree on that?

yes we can -- and i sincerely hope they do. but i don't think they will. the direction of the court -- of american politics -- is toward majoritarianism and idealism -- and away from law and empiricism. scalia himself, imo, has shown himself to be a majoritarian in sheep's clothing and is working essentially to undermine the "undemocratic" judiciary (thereby invalidating it).

i think increasingly that, if you want rule by law, you need to go elsewhere -- and perhaps nowhere can you see any longer the rule of law and representative government really coexisting as they did for two centuries following the english civil war.

|6.10.05 @ 12:48PM|#

But as for "New Deal" vs "laissez faire era," your comment seems to overlook the rather significant fact that the New Deal and Warren court decisions came AFTER the "laissez faire" era.

I don't see how that has anything to do with it. Because they came after the laissez-faire era doesn't mean they respected the precedent themselves.

The legal status quo was what it was at the time of the founding, and then went through an evolutionary process that incorporated past precedent, but gradually changed it as the world changes and the application of the principles of the Constitution had to change with it.

Bull-fricking-shit. You must be using a new definition of "gradually" that I'm not aware of. Wickard and similar blank-check decisions appeared out of nowhere within a decade after FDR floated his court-packing scheme.

|6.10.05 @ 2:48PM|#

"If you want the courts to operate in any other way, such as the precedent-busing iconoclasm advocated by Jason Ligon, what you are saying is that we should cease to have courts as they have existed since Anglo-Saxon times, and have some other system instead."

I'll make a deal with you, joe. Let's reverse the precedent busting iconoclasm of FDR's bullied court, THEN start respecting precedent. If you get one radical iconoclastic swipe at precedent, I should get one, too. Otherwise, this just sounds like an argument of convenience.

We live in government by populism and we have FDR to thank for it. All of the calls to appeal to precedent I'm hearing only want to appeal to a couple of decisions during FDR's "old men" court. Precedent begins and ends with that decision. If there is no logic behind each subsequent upholding of ICC foolishness, only precedent, then the claim that we are overturning some kind of collective wisdom with a different interpretation is ludicrous. We are only overturning a series of decisions that 100% refer to those handful of decisions that, by the way, everyone knows were issued only under duress. Why is that court the only one in history allowed to decide on other than precedent?

Collective wisdom has to mean something like this: A court makes an interpretation of the constitution based on some criteria. That argument is logged. A future case revisits that same issue and another court appeals to precedent in the sense that if their decision differs, they must address the specific arguments made by the previous court. In this way, collective wisdom is built upon in the same way that the body of philosophy is built upon by engaging previous arguments. Respect for precedent can't mean that only one court in history ever thinks about anything.

I can't help but feel that joe and gaius are seeing a willy-nilly ness to what I'm proposing that just isn't there. There are conservative institutions in place - the appeals process, the nine member Supreme Court, the select number of cases that will actually be heard, and so forth, that prevent such 'chaos' as would result from justices actually, I don't know, doing their job instead of rubber stamping "What he said," on every case. The conservatism of the court is NOT 100% located in its use of precedent, the conservatism of the court is in its appeal to a document that is designed to have to be amended to be changed. Under the suggested levels of deference to precedent, we have flushed the first order conservative measure of amendment in favor of a precedent that says populism reigns.

David Nieporent|6.10.05 @ 6:32PM|#

The problem, Jason, is that Joe doesn't really understand the issues; his reference to "Anglo Saxon times" simply confirms that.

What he's talking about is common law. That's fine when we're talking about issues of statutory interpretation. The value of stare decisis (predictability) is high, and the cost (a bad decision) is low, because it's easy for the legislature to reverse it if wrong.

But the issue with JRB is constitutional law. The role of the judiciary in constitutional law is different.


Now, of course what nobody on this thread has noted is that, as an appellate judge, JRB will be both legally and practically _bound_ by precedent such as Wickard. As awful as it is, it's a Supreme Court ruling, and only the Supreme Court is empowered to overturn it. She can wiggle around the edges -- which is what our Roman friend appears to endorse anyway -- but she can't confront it head on. At least not until she ends up on the Court.

NickM|6.11.05 @ 5:42PM|#

I don't want her off the bench because we differ on what precedents we disapprove of. I want her off the bench because of her transparent eagerness to run roughshod over precedent. Judges are supposed to respect precedent, and treat the reversal of established law as an extreme act to be used rarely, carefully, almost regretfully. She doesn't - she's eager to increase her power, because she's eager to get in there and start hacking away at established law she doesn't like.

I am awaiting joe's denunciations of William Brennan, Thurgood Marshall, William Douglas, and Earl Warren.

Nick

|6.12.05 @ 5:48PM|#

If Julian is a closetted homosexual, why do all of us regulars, who have never met the man, already know that he's gay?