Posted by David Bernstein:
Defending Janice Rogers Brown from Stuart Taylor:
[1]Unlike co-conspirator Orin, I'm not at all impressed with [2]Stuart
Taylor's piece on Janice Rogers Brown. Indeed, as discussed, below,
I'm very troubled by it.
Unlike many Circuit Court nominees, Brown is not an unknown judicial
quantity, but has served on the California Supreme Court and lower
courts for many years. Thus, regardless of her rhetoric in speeches
given to ideological audiences, we can actually judge her judicial
performance on the record. Indeed, as a California Supreme Court
Justice sitting on the highest court in the state, she had a lot more
freedom of action to try to move the court in a libertarian activist
direction that she would as a D.C. Circuit Judge. And I have seen no
evidence, including no evidence from Taylor, that her opinions are
anything but standard judicial opinions relying on precedent was
nothing "radical" or "extremist" about them. In particular, I have
seen no evidence that Brown has tried to revive Lochner as a
California Supreme Court Justice under the state or Federal
Constitution (and under the state constitution such rulings would not
be subjected to U.S. Supreme Court review). On the record, I see no
reason for the Senate to reject Brown as anything approaching a
judicial extremist prone to ignoring precedent. Rather her opinions
are sharp, pointed, well-reasoned, and firmly grounded in precedent.
Taylor raises Brown's dissent in San Remo Hotel v. San Francisco, but
he (for reasons that will become clear below) distorts it beyond
recognition. He writes: "she called for a new 'conceptual approach'
that would invalidate laws redistributing wealth from one group to
another." Except she did no such thing. First, despite Taylor's
quotation, the words "conceptual approach" to not appear in her
opinion. Nor does she advocate a rule barring laws that
"redistribut[e] wealth from one group to another." Rather, she cites
both U.S. Supreme Court and California Supreme Court precedents for
the proposition that public burdens such as housing the poor may not
fall upon the property rights of small groups of public landowners,
such as the owners of SRO housing in San Remo. Within the context of
modern Takings law, this is not radical stuff. (See, e.g., the Warren
Court Supreme Court case of Armstrong v. United States (1960): "The
Fifth Amendment's guarantee . . . was designed to bar Government from
forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole.").
According to Taylor: "She also cited with approval a 1985 book,
Takings: Private Property and the Power of Eminent Domain. The author,
Richard Epstein, has said that his theory would "invalidate much ...
20th-century legislation." But Brown actually cited Epstein in support
of the proposition that many regulations of property are in fact
constitutional under the Takings Clause. Here is the entire quote:
The law has long recognized, for example, that government might, in
the exercise of the police power, act to proscribe a nuisance, and
in so doing it need not pay compensation. (See, e.g., Civ. Code, §
3479; Code Civ. Proc., § 731.) Holmes spoke of "an average
reciprocity of advantage" whereby a property regulation ultimately
works for the enrichment of all, though it imposes specific
limitations on the use of certain property. (Penna. Coal Co., at p.
415 [43 S.Ct. at p. 160].) For example, business owners on a
popular shopping street might generally agree that their properties
would be more attractive, and hence more valuable, if all the
businesses used small, attractive signs rather than huge, garish
billboards. Nevertheless, without regulation, competitive forces
will inevitably cause business signs to become ever larger and more
visually intrusive. No business owner wants to be the only one on a
shopping street to have a small sign, and transaction costs often
prevent owners from coming together to negotiate an agreement that
would work to their common advantage. In that case, a regulation
that has the immediate effect of reducing property value by
restricting sign size, has the indirect effect of enhancing that
value for all affected businesses. (See generally Epstein, Takings:
Private Property and the Power of Eminent Domain (1985) pp.
195-215.)
Needless to say, this does not remotely resemble an endorsement of the
antiredistribution thesis of Epstein's book.
Indeed, if guilt-by-citation is to be invoked, than perhaps Brown is
actually very liberal: after all, in the same opinion she also cites
one other academic Takings expert, with a rather different view than
Epstein's: Harvard's Frank Michelman.
So where did Taylor get the idea that Brown's opinion (which I urge
you to read, it can be found at 27 Cal.4th 643) endorses a radical
libertarian "new conceptual approach" to the Takings Clause? Or that
she endorses Epstein's theory of Takings? Apparently, not from reading
the opinion. Indeed, [3]the link Taylor provides is not to the
California Supreme Court opinion, but to a later federal Ninth Circuit
opinion which, of course, did not involve Brown.
But both of Taylor's false allegations do appear in report by the
left-wing [4]Community Rights Council and EarthJustice on Brown. On
page 15 of the report, it cites Brown's opinion in San Remo for the
proposition that she "argues for a 'new conceptual approach that takes
seriously the constutional prohibiton against uncompensated takings of
private property.'" As for Epstein, the report states (deceptively)
that his Takings book is "cited favorably" in Brown's San Remo dissent
and that Epstein enthusiastically describes his views as
"'invalidat[ing] much of the twentieth century legislation.'"
In short, Taylor's discussion of Brown's opinion in San Remo bears
very little resemblance to the actual opinion, but bears striking
resemblance to the Community Rights Council's distortion of that
opinion. I am disappointed that a normally excellent journalist like
Taylor, whose work I've often admired, would rely on a distorted
report by a biased interest group rather than read the original
sources and draw his own conclusions.
References
1. http://volokh.com/archives/archive_2005_05_01-2005_05_07.shtml#1115065008
2. http://nationaljournal.com/taylor.htm
3. http://caselaw.lp.findlaw.com/data2/circs/9th/0315853p.pdf
4. http://www.communityrights.org/PDFs/BrownReport.pdf
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