What's Wrong with a Few "Open-Mic Libertarian Musings" from a Federal Judge?


Earlier this month, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Hettinga v. United States. At issue were two provisions from the Milk Regulatory Equity Act of 2005, which is essentially a price-rigging scheme for milk and milk products. The challengers, Hein and Ellen Hettinga, argued that their dairy operation should be exempted from the provisions on account of certain differences between their business and other dairy processors and distributors. The D.C Circuit disagreed and ruled against them.

It wasn't a surprising outcome. Since the New Deal, federal courts have routinely upheld economic regulations against the vast majority of legal challenges. In one of the earliest examples of this now-routine practice, the Supreme Court in Nebbia v. New York (1934) upheld the prosecution of New York shopkeeper Leo Nebbia for the crime of selling two quarts of milk and a 5 cent loaf of bread for the combined price of 18 cents. Unfortunately for Nebbia (and his customers), the state's Milk Control Board had fixed the minimum price of milk at 9 cents a quart in order to combat the scourge of low prices during the lean years of the Great Depression.

"A state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose," declared Justice Owen Roberts in his 5-4 majority opinion. Furthermore, "If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied." Lawyers today know this deferential approach as the rational-basis test, though the term rubber stamp would also be an accurate description, since the government needs to provide only the very flimsiest of justifications in order for its economic regulations to pass muster.

So as you would expect, the D.C. Circuit dutifully adhered to rational-basis doctrine when deciding Hettinga. But in a more unexpected maneuver, Judge Janice Rogers Brown filed a concurring opinion in the case (which was joined by Chief Judge David Sentelle) where she explained that although she was duty-bound to employ the rational-basis test in economic cases like this one, she did not have to like it. "The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process," Brown wrote. "It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions." Indeed, she concluded, "Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more."

Writing at Slate, liberal legal writer Dahlia Lithwick criticized Rogers not just for her "open-mic libertarian musings" but for "injecting" her own constitutional views into the Hettinga ruling in the first place. According to Lithwick, Brown "is embracing a starkly political and ideological tone most judges try to avoid."

I happen to think that Judge Brown is correct about the Supreme Court's shameful mistreatment of economic liberty over the past eight decades, so maybe Brown's concurrence didn't offend me for political reasons. But then again, I also can't imagine being particularly offended if a left-leaning federal judge used the occasion of a gun control case to rail against the Supreme Court's 2008 decision in D.C. v. Heller (which I think was decided correctly), while at the same time acknowledging that she was duty-bound as a lower court judge to follow the Court's Heller precedent.

As long as lower-court judges aren't flat-out disobeying the Supreme Court, what's wrong with pointing a few rhetorical barbs in the Court's general direction?