WP: Reject Brown for Valuing Property Above Human Rights

[BurtWorm]

http://www.washingtonpost.com/wp-dyn/content/article/2005/06/06/AR2005060601734.html


Justice Brown, in speeches, has openly embraced the "Lochner" era of Supreme Court jurisprudence. During this period a century ago, the court struck down worker protection laws that, the justices held, violated a right to free contract they found in the Constitution's due process protections. There exist few areas of greater agreement in the study of constitutional law than the disrepute of the "Lochner" era, whose very name -- taken from the 1905 case of Lochner v. New York -- has become a code word for judicial overreaching. Justice Brown, however, has dismissed the famed dissent in Lochner by Justice Oliver Wendell Holmes, saying it "annoyed her" and was "simply wrong." And she has celebrated the possibility of a revival of "what might be called Lochnerism-lite" using a different provision of the Constitution -- the prohibition against governmental "takings" of private property without just compensation.


In the context of her nomination, Justice Brown has trivialized such statements as merely attempts to be provocative. But she has not just given provocative speeches; "Lochnerism-lite" is a fairly good shorthand for her work on the bench, where she has sought to use the takings doctrine aggressively. She began one dissent, in a case challenging regulation of a hotel, by noting that "private property, already an endangered species in California, is now entirely extinct in San Francisco." Her colleagues on the California Supreme Court certainly got what she was up to. In response, they quoted Justice Holmes's Lochner dissent and noted that "nothing in the law of takings would justify an appointed judiciary in imposing personal theory of political economy on the people of a democratic state."

Justice Brown is that rare nominee for whom one can draw a direct line between intellectual advocacy of aggressive judicial behavior and actual conduct as a judge. Time was when conservatives were wary of judges who openly yearned for courts, as Justice Brown puts it, "audacious enough to invoke higher law" -- instead of, say, the laws the people's elected representatives see fit to pass. That Justice Brown will now get a vote means that each senator must take a stand on whether some forms of judicial activism are more acceptable than others.

[BurtWorm]

1. Howler asks why this key fact about Brown is only on Post's op-ed page

http://www.dailyhowler.com/

Why is this editorial worth noting? Because again, the editorial discusses elementary factual matters which the Post news division has wholly ignored. If you run a Nexis check on “Brown AND Lochner,” there is only one previous Post reference—and that is another Post editorial, which appeared on May 25 (see THE DAILY HOWLER, 5/25/05). Nor can we find any sign that the specific decision discussed in today’s editorial has ever been referenced in a Post news report. Are the editors right about Brown and “the Lochner era?” Post readers have no way to say. In its news pages, the paper has simply refused to explore the background of Brown’s judicial career. Once again, if it’s actual information you want, you have to read the editorials. You’ll find maddening nuggets of information on matters the news pages have ignored.

Over and over, we’ve mentioned this peculiar aspect of modern press culture. Your modern press corps avoids information like the plague. What has Brown’s judicial career been like? What are the specific complaints about Brown? In its news pages, the Washington Post hasn’t stooped to discuss these matters. The very idea of information is kept alive in the Post’s editorials. Some day, scholars may recall this as the day when the editorials saved civilization.