If only Janice Rogers Brown were on the Supreme Court…

April 18, 2012
By

She’d be another Clarence Thomas:

This past Friday, Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals voted to uphold a blatantly protectionist law designed to prevent competition in the dairy industry. As a matter of judicial doctrine, the case is unremarkable — such laws are upheld all the time. And that — as Judge Brown explained — is the problem.

The case concerned a 2005 federal law designed to prevent dairies that both produce and process milk from having a competitive advantage over dairies that only produce milk. More precisely, the law was written to hamstring a specific Arizona dairy business whose competition had led to a 20-cent drop in the regional price of milk.

The three-judge panel unanimously upheld the law. But Judge Brown, in a scathing concurrence joined by Chief Judge David Sentelle, made clear that she wasn’t happy about it. Her vote, she explained, was compelled by decades of bad U.S. Supreme Court precedent.

Since the 1930s, the Supreme Court has ordered lower courts to review economic regulations with an extremely deferential “rational basis test,” which requires only that such regulations be “rationally related” to a “legitimate government interest.” In practice, this amounts to no meaningful review at all.

[…]

With that kind of precedent, it is no surprise the D.C. Circuit upheld a law primarily designed to subsidize milk producers by forcing consumers to pay artificially inflated prices for milk. As Judge Brown aptly put it, the Supreme Court has “abdicated its constitutional duty to protect economic rights.”

10 Responses to If only Janice Rogers Brown were on the Supreme Court…

  1. Jim,MtnViewCA,USA on April 18, 2012 at 9:41 am

    I would vote for Mitt if he said Janice Brown was on his short list for any SC openings which came up.

  2. MikeN on April 18, 2012 at 10:36 am

    That is a ridiculous thing for a lower court judge to be saying in opinions.

  3. Evan3457 on April 18, 2012 at 10:57 am

    Not if it’s what she really believes. In fact, it’s exactly what a good judge should do: not try to overturn a Supreme Court decision but state her plain disagreement with it. Let the plaintiff appeal and try to get the Court to overturn itself.

    The Supreme Court isn’t always right. It doesn’t deserve undue deference.

  4. anonymous un-RINO on April 18, 2012 at 11:10 am

    Yeah, Janice Rogers Brown has apparently given up on ideas of joining the Supreme Court. The Beltway wants no parts of her kind. More’s the pity.

  5. MikeN on April 18, 2012 at 1:10 pm

    >The Supreme Court isn’t always right. It doesn’t deserve undue deference.

    It does for lower court judges.

  6. anonymous un-RINO on April 18, 2012 at 1:56 pm

    No, it never deserves “undue deference”. It’s due the deference Brown gave it, which is to respect the precedent it’s established, while pointing out its glaring weaknesses.

  7. Roberts did not disappoint « Blithe Spirit on July 1, 2012 at 9:52 am

    […] Supreme Court has “abdicated its Constitutional duty to protect economic rights.” See If only Janice Rogers Brown were on the Supreme Court dated […]

  8. Roberts did not change « We Win They Lose on July 1, 2012 at 5:13 pm

    […] Supreme Court has “abdicated its Constitutional duty to protect economic rights.” See If only Janice Rogers Brown were on the Supreme Court dated […]

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