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.

Janice Rogers Brown

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?

NEXT: Portland Protects Passengers From Prompt Pickups and Popular Prices

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  1. She’s duty bound to adhere to the rational basis test, even when it clearly conflicts with the Constitution. What a clown.

    1. That’s not to say I don’t respect her sentiment. But the system is a farce.

  2. Because it’s Dahlia frigging Lithwick, that’s why.

    1. Has Lithwick ever actually written something intelligent? Everything I ever seem to hear from her is staggeringly stupid.

      1. She gets her fame and fortune by suckling at the teat of shabby power. What did you expect?

        1. ^This. Instead of using her law degree to (a) practice law or (b) write responsible legal journalism, she’s chosen to (c) attach her name to arrant bullshit that confirms the left’s biases.

          1. Lithwick is a ridiculous woman.

            It’s not that she writes about legal precedings, explains both sides of the argument, and then decides the liberals are right every. single. time.

            No, instead she writes as if the constitutionalist (strict constructionist) part of the court is made up of a group of particularly dim ideologues who don’t even have a coherent theory about why they do what they do. Basically, they just favor dumb shit because they’re dumb. People who think the government is or should be anything other than omnipotent are dumb.

            That, in a sentence, is the sum of the substance of every word of legal punditry that Dahlia Lithwick has ever done. May history forget her name.

  3. I think it might be more proper to give these kinds of critiques in a legal journal or as a guest speaker at a law school.

    1. So the public isn’t entitled to know if a judge believes that the precedent they’re following is illegal and against the public interest? I would think that it would be wrong *not* to let the public have this information about the operation of their judicial system.

      1. And speaking at a law school would meet with concern-trolling for “extra-judicial comments on matters which might come before them as judges.”

    2. Funny how proggies are all about using the law as a symbol – until someone does it back to them.

    3. It’s called an “opinion” for a reason. By Lithwick’s logic, they should just make known the decision without explaining their reasoning, especially in a concurrence.

      1. Aren’t all dissenting opinions “injecting” an extra-judicial opinion into a ruling? A 5-4 decision is a majority decision still, surely the dissents are just giving meaningless opinions that have no bearing on the courts’ interpretation of the law.

  4. I bet Clarence Thomas would speak against rational basis. He quoted the P&E clause of the 14 th amendment even though it was considered a dead letter. Plus he’s black too.

    1. Clarence Thomas is no more black than Janice Rogers Brown, Condoleeza Rice, or Herman Cain. All black people think alike – how else could Jesse Jackson and Al Sharpton speak for all blacks?

    2. How awesome would it be to have both CT and JRB on SCOTUS. The Court would have a “black libertarian” wing.

  5. The Supreme Court is entitled to know what the peons lower in the judicial system think of their precedents. Or do they not only want obedient, but sycophantic people in the lower ranks?

    1. Yep, exactly.

  6. Too bad she didn’t dissent on the case but I would still like to see her on the Supreme Court. And Andrew Napolitano while I’m dreaming.

    1. Kozinski over Brown or Napolitano.

      1. You mean the guy who wanted an amendment overturning Citizens United?

        1. Two stupid pills today, eh Tulpa?

      2. Can’t we have Kozinski and Brown?

  7. Because judges are only supposed to say things like, “three generations of imbeciles are enough”. If it isn’t progressive, it doesn’t belong coming out of a judge’s mouth.

  8. What I don’t get is price control are designed to be discriminatory – to either a producer or a consumer. So therefore the legislation fails the rational-basis test.

    What kind of mental gymnastic ineptitude must one possess to rule that legislation both meets and fails the same rational-basis test? basically she says she finds the legislation unconstitutional but is too much of a chicken-shit to rule properly.

  9. Dahlia Lithwick has to be one of the deadest brains around. I’ve never read a rational column by her. She’s like the Pulitzer prize winning ex-Enron advisor partisan Economist commentator Paul Krugman, totally irrational and often self contradictory within a paragraph or two

    1. She works for NPR. Where the honest, rational, and consistant need not apply.

      1. You don’t get to be a regular on NPR by believing that the Bill of Rights applies to the states.

  10. Stating an obvious truth (in this case, that regulators favor special interests) is always Heresy.

  11. I like how the Slate “progressive” legal analyst just threw a couple of small dairy farmers under the bus in favor of big milk.

    1. —in favor of gobernment regulation. Cause the state always knows best.

    2. There are a lot of small dairy farms in big milk.

    3. Nothing new. See: New London vs Kelo.

      Hell, I still remember one of the comments on Daily Kos after the Kelo:

      Still, I’d have bet on it going the other way, given the way the Court has been ruling on takings in recent years. And while I hate the very idea of doing anything to improve Mall*Wart’s position, I hate the idea of the conservatives’ position on takings getting enshrined in our law any more than it already is.
      The state must have the ability to take land for public goods (though I would be more inclined to say that such takings could only be used for construction of roads, parks, hospitals, and other public facilities, and not just for “economic development”). If they can afford to, let them buy the property outright. But if the owners won’t sell, then they must be subject to eminent domain, always assuming they are given fair compensation for the property they lose.

      Don’t ever think for a minute that progressives are for the little guy.

  12. Janice Rogers Brown had a reputation for sharp rhetorical barbs on the California Supreme Court. I’ve always liked her for that, and for the time I saw her speak and she outed herself as a Trekkie. California lost a keen and witty legal mind when she went to the DC Circuit.

  13. This sort of thing is probably good from a signaling perspective. We could get nearly blank slates like Roberts or Kagan, or we could get people who have some clear opinions and viewpoints. That’s good for people who agree with a judge’s opinion and for people who disagree. Otherwise we’re rolling the dice on how a new judge or Justice will act.

  14. Good to see that there are still some good judges out there.

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