Janice Rogers Brown

[Matthew J. Franck]

In today's Washington Post, Douglas T. Kendall and Timothy J. Dowling have an op-ed in which they describe California supreme court justice Janice Rogers Brown, now a nominee to the D.C. Circuit, as "openly support[ing] a return to the era of Lochner."  There are some interesting Brown quotations that suggest as much later in the article.  But they don't look like quotations from a judicial opinion (a quick search of her opinions turns up nothing like them) and I can find no article by her on Lexis/Nexis with these quotations.  Below are the two paragraphs from the Post article containing her words.  Can anyone supply the source?  Perhaps someone knows the op-ed's authors and can query them?  Thanks for any leads.

Here are the two Kendall/Dowling paragraphs:

"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.'"

Matt

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Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA  24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail [EMAIL PROTECTED]
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