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…