by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Janice Rogers Brown—one of my favorite federal judges—will retire next month from the U.S. Court of Appeals for the D.C. Circuit. Damon Root has called her, “The most libertarian federal judge in America,” and that may well be true. In a speech to the Federalist Society, in which she quoted both Ayn Rand and Milton Friedman, Judge Brown observed that:
Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.
Such frankly expressed views won Judge Brown many enemies. Her nomination to the D.C. Circuit (by George W. Bush) was held up for years by Senate Democrats, including a newly elected senator from Illinois named Barak Obama. In one of his first speeches on the floor of the Senate, Obama said he opposed Judge Brown’s nomination “in the strongest terms”:
Justice Brown believes … that the New Deal, which helped save our country and get it back on its feet after the Great Depression, was a triumph of our very own “Socialist revolution.” … She equates even the most modest efforts to level life’s playing field with somehow inhibiting our liberty. …
She believes the Supreme Court should be able to overturn minimum wage laws. She thinks we should live in a country where the Federal Government cannot enforce the most basic regulations of transparency in our security markets, that we cannot maintain regulations that ensure our food is safe and the drugs that are sold to us have been tested. … [A]ccording to Justice Brown, … local governments or municipalities cannot enforce basic zoning regulations that relieve traffic, no matter how much damage it may be doing a particular community. …
It would be one thing if these opinions were confined to her political speeches. The fact is she has carried them over into her judicial decision making.
Acknowledging Judge Brown’s “humble beginnings as a child of a sharecropper,” Obama claimed:
I … am an admirer of [Janice Rogers] Brown’s rise from modest means, just as I am an admirer of Alberto Gonzales’s rise from modest means, just as I am an admirer of Clarence Thomas’s rise from modest means, just as I am an admirer of Condoleezza Rice’s rise from modest means. I think it is wonderful. We should all be grateful where opportunity has opened the doors of success for Americans of every background. …
Nevertheless, he insisted:
I believe if the American people could truly see what was going on here they would oppose this nomination … because they fundamentally disagree with a version of America she is trying to create from her position on the bench. It is … a view of America … that requires no sacrifice on the part of those of us who have won life’s lottery and does not consider who our parents were or the education received or the right breaks that came at the right time.
(Obama is the son of well-educated professionals. He attended an elite private prep school followed by Columbia and Harvard and received more than his share of “the right breaks.” He clearly knows a lot about winning life’s lottery. But he doesn’t seem to know much about irony.)
Since her appointment, Judge Brown’s libertarian views have often put her at odds with the Supreme Court’s many decidedly un-libertarian doctrines. When that happens, she acknowledges the Supreme Court’s authority over lower courts, including hers, and she makes her decisions accordingly. However, when she thinks the Supreme Court is wrong, she doesn’t hesitate to criticize it, usually by writing a forcefully worded concurring opinion. (See, for an example, her memorable concurrence in United States v. Gross.)
Judge Brown doesn’t hesitate to criticize the other branches of government either, and her recent concurrence in Ahmed Salem Bin Ali Jaber v. United States is a notable example. The plaintiffs in Ali Jaber are relatives of two men who were killed as “collateral damage” during a U.S. drone attack in Yemen. They claim that the attack violated international and U.S. law because, rather than strike when the intended victims were alone and away from other people as could easily have been done, the drone operator did not strike until the intended victims had entered the village where the plaintiffs’ family members were attending a wedding celebration.
In her opinion for the court, Judge Brown dismisses the plaintiffs’ complaint because, under the Supreme Court’s political question doctrine, it is “nonjusticiable.” However, in a separate concurrence she observes:
[I]f judges will not check this outsized power, then who will? … The President is the most equipped to police his own house…. But, despite an impressive number of executive oversight bodies, there is pitifully little oversight within the Executive. Presidents are slow to appoint members to these boards; their operations are shrouded in secrecy; and it often seems the boards are more interested in protecting and excusing the actions of agencies than holding them accountable. Congress, perhaps? … [C]ongressional oversight is a joke—and a bad one at that. Anyone who has watched the zeal with which politicians of one party go after the lawyers and advisors of the opposite party following a change of administration can understand why neither the military nor the intelligence agencies puts any trust in congressional oversight committees. They are too big. They complain bitterly that briefings are not sufficiently in depth to aid them in making good decisions, but when they receive detailed information, they all too often leak like a sieve.
Our democracy is broken. We must, however, hope that it is not incurably so. This nation’s reputation for open and measured action is our national birthright; it is a history that ensures our credibility in the international community. The spread of drones cannot be stopped, but the U.S. can still influence how they are used in the global community—including, someday, seeking recourse should our enemies turn these powerful weapons 180 degrees to target our homeland. The Executive and Congress must establish a clear policy for drone strikes and precise avenues for accountability.
Near the end of the opinion, she quotes a passage from Robert Bolt’s A Man for All Seasons:
ROPER: So now you’d give the Devil benefit of law!
MORE: Yes! What would you do? Cut a great road through the law to get after the Devil?
ROPER: I’d cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.
She concludes by writing:
The Court’s opinion has not hacked down any laws, though we concede the spindly forest encompassing the political question doctrine provides poor shelter in this gale. But it is all a Judiciary bound by precedent and constitutional constraints may permissibly claim. It is up to others to take it from here.
Such opinions are the reason I, and her many admirers, will be sorry to see Judge Brown step down. However, in a recent piece in the Washington Post, one of those admirers, Jonathan Adler, points out that there is a silver lining to brighten this otherwise gloomy prospect. Judge Brown’s retirement will give President Trump an opportunity to appoint an equally principled but much younger judge to the D.C. Circuit.
Adler names seven excellent candidates who are said to be under consideration, including another of my favorite judges, Texas Supreme Court Justice Don Willett. And that’s not all. According to Adler, “It is assumed that Brown will take senior status,” which means she will be able to participate in three-judge panels and hear cases when she chooses to do so.
The D.C. Circuit is generally regarded as the most important circuit in the U.S. Court of Appeals. Adding Don Willett or some equally staunch defender of freedom and limited, constitutional government to the D.C. Circuit bench would be great. Doing so, while continuing to get the benefit of Janice Rogers Brown’s wisdom and strength of character when they are needed? Maybe we can have our cake and eat it too.