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The Spectacle Blog
I’ve written several times on my web site about Judge Janice Rogers Brown, who was nominated to the federal Court of Appeals for the DC Circuit by President Bush. In my view, Judge Brown is one of the best, and perhaps the best, federal judge in America — which is why Ted Kennedy so fiercely (but unsuccessfully, despite an initial Democrat filibuster) opposed her nomination.
Judge Brown’s fierce intellect was on full display in her concurrence in a recent court decision in the case of Hettinga v US in which the owner of a few large dairies argued unsuccessfully that a law which impacts only him (but does not name him and could theoretically impact others in a similar situation) was an unconstitutional bill of attainder.
The full decision can be found here, but for your review I offer below only Judge Brown’s concurring opinion, which should be must-read material for every high school and college “civics” or law-related class, and in every law student’s introductory materials. (The full opinion has an extra dozen pages, most of which is not necessary to understand Judge Brown’s commentary, though for law geeks like me it is an interesting read, in part because it shows the destructive influence of reliance on bad precedent.)
The document below includes the first two pages of the full decision packet, which has the name of the case, the participants, and the first couple of paragraphs of the per curiam decision (in this case the unanimous decision of the three-judge panel) followed by Judge Brown’s concurrence.
One can almost feel Judge Brown’s anger at the Supreme Court’s reprehensible stance that decisions relating to economic regulation will be given the Court’s lowest level of scrutiny and generally resolved in favor of Congress rather than those whose rights are being trampled by Congress. (For more on the history of this, read about the 1938 Supreme Court case, made in the shadow of FDR’s Court-packing threat, called Carolene Products, and its infamous Footnote Four, which has done untold damage to our nation by allowing Congresses and Presidents to run roughshod over what our Founders would certainly have considered fundamental rights.)
One of the most remarkable things about Judge Brown is that a formerly ultra-liberal (she says she was borderline “Maoist”) daughter of an Alabama sharecropper has become one of the leading pro-liberty minds in America and in our federal judiciary. Sadly for the nation, one of the other most remarkable things about Judge Brown is that she is so frequently a voice in the wilderness, lost among a bunch of judges and politicians whose views would make James Madison shudder in revulsion with what his “constitutional” republic has become, and with how little respect those who should most honor our Founding principles — and who take an oath to uphold them — actually have for them.
I urge you to read Judge Brown’s opinion, and to share it with others.
I suggest you click the “read fullscreen” button (a square with four arrows pointing out from the center) next to the “Download” button above the document to make your reading easier. Hit the ESC key when finished reading…
http://www.docstoc.com/docs/119373466/Judge-Janice-Rogers-Brown-concurrence-in-case-of-Hettinga-v-US
View all comments (14) | Leave a comment
More Blog Posts by Ross Kaminsky
http://spectator.org/blog/2012/04/23/janice-rogers-brown-strikes-ag
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TexasMom2012| 4.23.12 @ 11:21AM
Excellent microcosm of why our system of overregulation is such a huge drain on our economy. Every area of economic activity is distorted by special interests. Very scary. Maybe the next Congress can try to dismantle some of the Hydra strangling the economy.
The American Hitman| 4.23.12 @ 11:27AM
How Mutt Romneycare can win this conservative's vote in the fall: take blood oath, with all cameras rolling, to nominate Judge Brown to fill the next SC vacancy (possibly Ruth Buzzy Ginsburg) and to fight for every last vote go get her confirmed in the Senate.
tonypal| 4.23.12 @ 11:52AM
My friend, here's how Mitt Romney wins my vote. By being the Republican nominee running against the most tyrannical politician ever foisted upon this great nation of ours.
As for Judge Brown, she's certainly well positioned to be a Supreme Court nominee. She would decimate the Democrats in any confirmation hearings. Just as important, the racism of the left would be laid bare for the entire nation to see. I'd love to to hear Chuck Schumer explain how she's unqualified after supporting the nominations of Sotomayor and Kagan. In Kagan's case, she is easily one of the least qualified people ever to sit on the high court. She's already displayed her ignorance and modest intellect during the Obamacare hearings.
The American Hitman| 4.23.12 @ 11:56AM
Just wearing the GOP uniform? Sorry, no sale. Mutt could wear the Dem uni just as comfortably.
KennesawJack| 4.23.12 @ 2:15PM
Yes, but Obamarx cannot, by any measure, where the GOP uniform. It is up to us to elect Romney and then make damn sure he wears the right one.
The American Hitman| 4.23.12 @ 2:50PM
Once he has your vote, you have no ability to make him wear the right one. Don't be a cheap date.
KennesawJack| 4.23.12 @ 5:31PM
Rather a cheap date with Romney than a booty-call with Obamarx.
KennesawJack| 4.23.12 @ 2:22PM
Have you forgotten how the left brutalized Clarence Thomas? Not a single one paid a political price within the black community for it. Why? Because the left has succeeded in reducing the majority of blacks to the perpetual slavery of the dole. The dems tell them how to vote and they simply shuffle their feet and say "yessur, Massah". Martin Luther King, Jr. is weeping in Heaven and what's become of the people to whom he tried to restore dignity. The minority of blacks who refuse to bow to the Dems are routinely skewered by the majority of those who have sold their souls, their future, and their childrens' souls to the State.
tonypal| 4.23.12 @ 12:31PM
Pretty deep analysis there Hitman. Here's another possibility; I'd vote for Peter Pan if he was the Republican nominee running against Obama. Romney's probably about my 38th choice. I'll be voting more out of fear of a 2nd Obama term than anything else. So if you're satisfied with increasing the odds of Obama being re-elected, I would simply request you remove the "American" part from your moniker.
The American Hitman| 4.23.12 @ 2:54PM
LOL! very persuasive, pal!
Ever notice how the die hard Party-Firsters always go right to the "UnAmerican" woofing, when challenged?
J.C.Eaton| 4.23.12 @ 12:39PM
Ross, very nice find. Usually, Appellate judges specialize[or their clerks do] in arcane, esoteric pablum that relies more on bombast than sweet reason. This gal has some serious talent. For over a quarter of a century, Courts of Appeal[inc. the Supremes] editorialized on my stuff; I'd consider it an honor to get reviewed by this Judge.
RJ| 4.23.12 @ 1:30PM
Judge Brown previously served on the California Supreme Court and would have been an ideal choice for the US Supreme Court. Her following statement at the 2000 Federalist Society meeting in Chicago is one of my favorites:
"Where government moves in, community retreats, civil society disintegrates and our ability to control our 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."
William R| 4.23.12 @ 4:40PM
Janice Rogers Brown is a hack
http://blog.mises.org/12501/tr.....-discount/
http://blog.mises.org/10028/br.....ty-rights/
albert constantine jr.| 4.23.12 @ 5:45PM
I recall the left attacking her, and I can see why they fear her. Unfortunately, her well written and incisive concurring opinion merely connects the dots of how politicians, presumably well-meaning and possessed of the notion that "we've got to do something" have steadily eroded liberty in the last 80 or so years, rather than reverses it.