Janice Rogers Brown
|Judge of the United States Court of Appeals for the District of Columbia Circuit|
June 10, 2005 - August 31, 2017
|George W. Bush|
|Stephen F. Williams|
|Gregory G. Katsas|
|Associate Justice of the California Supreme Court|
May 3, 1996 - June 10, 2005
|Ronald M. George|
May 11, 1949
Greenville, Alabama, U.S.
|Education||California State University, Sacramento (BA)|
University of California, Los Angeles (JD)
University of Virginia (LLM)
Janice Rogers Brown (born May 11, 1949) is a former United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. She was an Associate Justice of the California Supreme Court from May 2, 1996, until her appointment to the D.C. Circuit. She retired from the federal bench on August 31, 2017.
President George W. Bush nominated her to the United States Court of Appeals for the District of Columbia Circuit in 2003. However, her nomination was stalled in the U.S. Senate for almost two years because of Democratic opposition. She began serving as a federal appellate court judge on June 8, 2005.
Born in Greenville, Alabama, Brown is an Alabama sharecropper's daughter who attended majority African American schools as a child. Her family refused to enter places of business that segregated blacks. She earned her Bachelor of Arts degree from California State University, Sacramento in 1974 and her Juris Doctor (J.D.) from the UCLA School of Law in 1977. In addition, she received a Master of Laws degree from the University of Virginia School of Law in 2004.
She had one child, Nathan A. Brown, adopted by her first husband, Allen E. Brown Sr., who died of cancer in 1988. She remarried in 1991 to jazz electric bassist Dewey Parker.
For most of the first two decades of her career, Brown worked for government agencies. She was Deputy Legislative Counsel for the California Legislative Counsel from 1977 to 1979. She then spent eight years as Deputy Attorney General for the Criminal and Civil Divisions of the California Attorney General's Office. She was Deputy Secretary and General Counsel for the California Business, Transportation and Housing Agency from 1987 to 1989 (and a University of the Pacific McGeorge School of Law Adjunct Professor from 1988 to 1989).
She briefly entered private practice as an Associate of Nielsen, Merksamer, Parrinello, Mueller & Naylor from 1990 to January 1991, when she returned to government as Legal Affairs Secretary for Governor Pete Wilson from January 1991 to November 1994. The job included diverse duties, ranging from analysis of administration policy, court decisions, and pending legislation to advice on clemency and extradition questions. The Legal Affairs Office monitored all significant state litigation and had general responsibility for supervising departmental counsel and acting as legal liaison between the Governor's office and executive departments. In November 1994, Wilson appointed Brown to the California Court of Appeal, Third Appellate District. Prior to this appointment, she was rated "not qualified" by the State Bar of California Commission on Judicial Nominees due to lack of experience.
In May 1996, Governor Pete Wilson appointed Brown as Associate Justice to the California Supreme Court. Before the appointment, she had been rated "not qualified" by the State Bar of California's Commission on Judicial Nominees, which evaluates nominees to the California courts. She was the first person with that rating to be appointed. The basis of that negative rating, according to the Commission, was her lack of judicial experience. Brown had then been sitting as a Justice of the Third District Court of Appeal of California (an intermediate appellate court below the California Supreme Court) for less than two years. Brown was praised in the JNE Commission evaluation for her intelligence and accomplishments, however.
While on the California Supreme Court, in Hi-Voltage Wire-Works, Inc. v. City of San Jose (2000), Brown wrote the majority opinion overturning a program of racial set-asides adopted by the city of San Jose, California. The opinion upheld an amendment to the California Constitution which banned "discriminat[ing] against or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." In another case, Brown dissented from an opinion striking down a parental consent law for abortions. Brown also wrote the majority opinion in Varian v. Delfino, an important First Amendment case involving the interpretation of California's SLAPP statute.
She was the lone justice to contend that a provision in the California Constitution requires drug offenders be given treatment instead of jail time. In 2000, she authored the opinion in Kasler v. Lockyer, upholding the right of the State of California to ban semi-automatic firearms, and of the Attorney General of California to add to the list of prohibited weapons. Her opinion in that case clearly explained that the decision was not an endorsement of the policy, but rather recognition of the power of the state.
Brown was nominated by President George W. Bush to the U.S. Court of Appeals for the District of Columbia Circuit on July 25, 2003, to fill a seat vacated when Stephen F. Williams assumed senior status. The Senate Judiciary Committee held a hearing on her nomination on October 22 of that same year. After her name had passed out of committee and had been sent to the full Senate, there was a failed cloture vote on her nomination on November 14, 2003. Brown's nomination was returned to the President under the standing rules of the Senate when the 108th United States Congress adjourned.
Bush renominated Brown on February 14, 2005, early in the first session of the 109th United States Congress. On April 21, 2005, the Senate Judiciary Committee again endorsed Brown and referred her name to the full Senate once more. On May 23, Senator John McCain announced an agreement between seven Republican and seven Democratic U.S. Senators, the Gang of 14, to ensure an up-or-down vote on Brown and several other stalled Bush nominees, including Priscilla Owen and William H. Pryor, Jr..
On June 8, freshman Senator Barack Obama strongly opposed the confirmation of her nomination in a speech on the floor of the U.S. Senate, characterizing her judicial activism as, "Social Darwinism, a view of America that says there is not a problem that cannot be solved by making sure that the rich get richer and the poor get poorer." He continued:
Justice Scalia says that, generally speaking, the legislature has the power to make laws and the judiciary should only interpret the laws that are made or are explicitly in the Constitution. That is not Justice Brown's philosophy. It is simply intellectually dishonest and logically incoherent to suggest that somehow the Constitution recognizes an unlimited right to do what you want with your private property and yet does not recognize a right to privacy that would forbid the Government from intruding in your bedroom. Yet that seems to be the manner in which Justice Brown would interpret our most cherished document.
Despite such opposition, Brown's nomination to the Court of Appeals was confirmed by the U.S. Senate on June 8, 2005 by a vote of 56-43. She received her commission on June 10. Brown was the second judge nominated to the D.C. Circuit by Bush and confirmed by the Senate. She began hearing federal cases on September 8, 2005.
Brown's dissenting opinion in Omar v. Harvey sets forth her judicial outlook on the constitutional balance of powers. The United States Court of Appeals for the D.C. Circuit upheld an injunction that forbade the U.S. military to transfer Omar, a suspected insurgent, out of U.S. custody while his habeas corpus suit was pending. Brown's dissent took the view that the majority was trespassing on the Executive Branch's authority:
Summarizing its position, the majority declares: "The United States may certainly share information with other sovereigns ..., but it may not do so in a way that converts Omar's 'release' into a transfer that violates a court order." This is a striking conclusion. The majority in effect holds that, in the proper circumstance, a single unelected district court judge can enjoin the United States military from sharing information with an allied foreign sovereign in a war zone and may do so with the deliberate purpose of foiling the efforts of the foreign sovereign to make an arrest on its own soil, in effect secreting a fugitive to prevent his capture. The trespass on Executive authority could hardly be clearer.
In 2012, she wrote a concurring opinion for the case Hettinga v. United States in which she severely criticized the dominant post-Lochner approach in the U.S. judiciary, that laws involving economic policy deserve "a strong presumption of validity."
In June 2017, Brown wrote for a unanimous circuit panel finding that the next friend of Yemenis killed in a U.S. drone strike could not sue under the Torture Victims Protection Act nor the Alien Tort Statute because the attack was not justiciable. However she wrote a separate concurring opinion that criticized this lack of oversight, which is barred by precedent, concluding, "The political question doctrine, and the state secrets privilege confer such deference to the Executive in the foreign relations arena that the Judiciary has no part to play. These doctrines may be deeply flawed."
Brown retired from the U.S. Court of Appeals for the D.C. Circuit on August 31, 2017.
Her libertarian political beliefs have been expressed in her speeches, most notably one she delivered to the Federalist Society at the University of Chicago Law School in 2000. Brown's speech mentioned Ayn Rand and lamented the triumph of "the collectivist impulse" in which capitalism receives "contemptuous tolerance but only for its capacity to feed the insatiable maw of socialism." She argued that "where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies" and suggested that the ultimate result for the United States has been a "debased, debauched culture which finds moral depravity entertaining and virtue contemptible."
Her remarks gained particular attention, however, for her thesis that the 1937 court decisions, such as West Coast Hotel Co. v. Parrish, upholding minimum-wage laws and other New Deal legislation, marked "the triumph of our own socialist revolution" and was the culmination of "a particularly skewed view of human nature" that could be "traced from the Enlightenment, through the Terror, to Marx and Engels, to the Revolutions of 1917 and 1937." She called instead for a return to Lochnerism, the pre-1937 view that the US Constitution severely limits federal and state power to enact economic regulations. In an exegesis of Brown's speech that was largely responsible for bringing it to public attention during her confirmation process in 2005, legal-affairs analyst Stuart Taylor, Jr. noted, "Almost all modern constitutional scholars have rejected Lochnerism as 'the quintessence of judicial usurpation of power'" and cited "leading conservatives -- including Justice Antonin Scalia, Senator Orrin Hatch, R-Utah, and former Attorney General Edwin Meese, as well as [Robert] Bork."
In the same speech, Brown explained that the Federalist Society had been described as a "rare bastion (nay beacon) of conservative and libertarian thought" in her invitation to speak, and that the "latter notion [had] made your invitation well-nigh irresistible." She also gave hints of her philosophical foundations, approvingly quoting descriptions of private property as "the guardian of every other right" and collectivism as "slavery to the tribe." She also described government as a "leviathan [that] will continue to lumber along, picking up ballast and momentum, crushing everything in its path."