By David Lyle

A court of appeals judge appointed by President George W. Bush issued a sweeping radical libertarian manifesto in a recent opinion. In doing so, D.C. Circuit Judge Janice Rogers Brown signaled a desire to strike down numerous health, safety and consumer protection laws. Brown’s opinion is further evidence that the media should give greater coverage to the courts of appeal, which often have the last word on legal issues that shape the life of every American. 

Brown’s concurring opinion, which was joined by Judge David Sentelle, is a frank and enthusiastic embrace of libertarian economic theories, and a scornful rejection of the democratic process: 

[The case] reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s. 

First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” … Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review…. Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” (emphasis added).

Legal history fans will recognize the purported nightmare scenario Brown laments as the series of decisions in the 1930s in which the Supreme Court recognized that the Constitution gives Congress and the state legislatures, and not judges, the power to determine how best to regulate the economy and protect the health and safety of the public. These decisions brought to an end the so-called Lochner era in which right-wing judges applied libertarian economic theories similar to Brown’s to strike down child labor laws, minimum wage and maximum hour rules, and a host of other health, safety and consumer protection laws.  Brown advocates for a return to that era, in which no protection of consumers, workers, investors or children was safe from judicial second guessing. 

As David Gans of the Constitutional Accountability Center writes in an email to Media Matters:

Judge Brown’s concurring opinion calls economic liberty a fundamental constitutional right and urges the Supreme Court to take us back to the Lochner era, when the Supreme Court invented a constitutional right to freedom of contract to second-guess state and federal regulation of corporations and other businesses.   This is a revolutionary view that would call for overturning hundreds of federal and state regulations as well as the last eight decades of Supreme Court jurisprudence. 

Brown also is dismissive of the democratic process, writing that “hope of correction at the ballot box is purely illusory.” Her support for this sweeping claim? A law review article by a professor at the libertarian-oriented George Mason University School of Law.

Brown’s personal opinions on such matters are well known to insiders who closely follow the judicial nominations process, based on speeches she gave as a state court judge, but her embrace of them in a D.C. Circuit opinion deserves broader attention.   The D.C. Circuit is often called the nation’s second most important court, behind only the Supreme Court, because it frequently decides cases on major laws and regulations protecting clean water and air, worker protections and food and drug regulation.