The Bush administration's decision to nominate Janice Rogers Brown to the nation's second most important court, the U.S. Court of Appeals for the D.C. Circuit, raises a seemingly paradoxical question: Where is the conservative outrage?
After all, Brown, a California Supreme Court justice, openly supports a return to the era of Lochner v. New York, the 1905 case in which a state statute that attempted to impose a maximum-hours limitation on bakers was struck down as an unconstitutional infringement of liberties protected by the 14th Amendment. In the Lochner era, the Supreme Court invalidated scores of federal and state statutes designed to improve working conditions during the Progressive Era and jump-start the economy out of the Great Depression. While arguments abound over what is and is not judicial activism, virtually everyone agrees on this: Lochner is a paradigmatic example of inappropriate judicial overreaching.
Deemed an "abomination" by Robert Bork, Lochner often is described as the most widely reviled decision of the past 100 years. The reason conservatives hate Lochner is not its results; many conservatives support the free-market social Darwinism advanced by the Lochner-era court. Rather, conservatives reject Lochner because it epitomizes the worst type of judging. As explained by former attorney general Edwin Meese III, "the Court in the Lochner era ignored the limitations of the Constitution and blatantly usurped legislative authority." Senate Judiciary Committee Chairman Orrin Hatch (R-Utah), in describing the perils of an activist judiciary, has placed Lochner in the company of the infamous Dred Scott ruling, which legitimized the spread of slavery and helped provoke the Civil War.
Conservatives point to their dislike for Lochner as Exhibit A in explaining why they ought to be trusted in judicial selection. For example, in responding to the criticism that presidents Ronald Reagan and George H. W. Bush were using judicial appointments to advance the conservative political agenda, Meese declared that "to both Chief Executives the activist Court of the Lochner era was as illegitimate as the Warren Court."
Justice Brown herself acknowledges how far out-of-sync her views are with mainstream conservative legal thinking. She has written that she "initially accepted the conventional wisdom" that the doctrine used in Lochner was "a myth invented by judicial activists that were up to no good," and that "Lochnerism is the strongest pejorative known to American law." Brown now rejects that conventional wisdom, however, and she chides conservatives for their "dread" of judicial activism. In her words, it "dawned on me that the problem may not be judicial activism. The problem may be the world view -- amounting to altered political and social consciousness -- out of which judges now fashion their judicial decisions."
In a nutshell, Brown believes that there is good judicial activism and bad judicial activism, and the Lochner court's activism was good because it advanced the economic policy preferences of certain Framers. The problem for Brown, and the Lochner court, is that these preferences did not make it into the Constitution's text. As Justice Antonin Scalia stated for the Supreme Court four years ago, Lochner is discredited because it "sought to impose a particular economic philosophy upon the Constitution." Brown rejects this criticism of Lochner as "simply wrong."
Brown's judicial opinions evidence a zeal for imposing her idiosyncratic views in spite of contrary precedent. For example, in a 2001 case, San Remo Hotel v. San Francisco, Brown's lone dissent calls for a dramatic expansion of the Constitution's takings clause to strike down an affordable-housing law. The majority responded that "nothing in the law of takings would justify an appointed judiciary in imposing [its] personal theory of political economy on the people of a democratic state."
The last judicial nominee who openly yearned for a return to the Lochner era was a California law professor named Bernard Siegan. Past here should be prologue. Siegan, nominated by Ronald Reagan in 1988 for the 9th U.S. Circuit Court of Appeals, was one of only four Reagan judicial nominees rejected by the U.S. Senate.
Republicans have angrily denounced the Democrats' use of filibusters to block several of President Bush's judicial nominations. In Brown's case, if the conservatives on the Senate Judiciary Committee hold true to conservative dogma, such countermajoritarian tactics will not be necessary. No senator would vote for a nominee who declares that Dred Scott was correctly decided. The same rule should apply for Lochner.
Douglas T. Kendall is executive director and Timothy J. Dowling chief counsel of Community Rights Counsel, a public interest law firm.