There’s a recent article by Slate’s Dahlia Lithwick about a ruling from the DC circuit, in which Judge Janice Rogers Brown writes a concurrence that dwells on an economic libertarian vision of economic liberty. This liberty, despite not being mentioned by name in the Constitution’s text (which conservatives usually think matters in determining whether or not something is a legitimate liberty interest), has allegedly been under constant assault by “a democratic process” that Brown considers beholden to unnamed “powerful groups.” Lithwick, echoing the concerns of Erwin Chemerinsky and others, thinks that the story here is one of norms of professionalism and propriety, but I think that’s something of a non-issue; that cat walked out of the bag a long time ago. Insofar as the Supreme Court has emerged as a consequential political institution in its own right, it is inevitable that current and aspirant justices will employ politicized rhetoric in their decisions.
What’s more interesting to me is Judge Brown’s theory of constitutionalism. She lambastes the Supreme Court for its decisions in Carolene Products and other cases on economic regulation, arguing that they abandoned the economic liberties that are often held to have been characteristic of the Lochner era. On the basis of the reasoning in her concurrence, constitutional constraints are in place in order to thwart the products of democratic institutions if they run afoul of certain principles, and it is the Supreme Court’s job to see the thwarting through. It would seem that Brown subscribes to the judicial supremacist vision of constitutionalism – according to which constitutions serve as barriers to the excesses of democratic politics – rather than the popular constitutionalist vision – according to which constitutions are tools by which democratic polities maintain control of their governmental institutions. It seems to me that popular constitutionalists are far better equipped to explain the legitimacy of the post-New Deal settlement – which features an administrative state capable of responding to and regulating the national economy in the public interest – than judicial supremacists are. It would seem that judicial supremacists must defend the Court’s post-New Deal jurisprudence largely on the basis of stare decisis and little else. (And, it must be admitted, stare decisis is apparently the only thing that would Judge Brown’s hand if she were a Supreme Court justice hearing cases involving federal economic regulations. However, if stare decisis is all that stands in the way of justices enacting their own policy preferences, wouldn’t eliminating judicial review of federal statutes be the best option? But I digress.)
If, as the thumbnail link in Slate’s sidebar suggests, Judge Brown is relying on “Tea Party ideology” to inform her judicial decision-making, then she’s serving to illustrate the point that the Tea Party’s goal of “restoring” a constitutional order that was “lost” during the New Deal is, of course, a judicial supremacist goal, and not a popular constitutionalist one. Whatever its other merits may or may not be, the Tea Party’s constitutional vision can hardly be described as democratic. And even if Judge Brown does not identify as a Tea Partier or fellow traveler, it would still be hard to characterize her constitutional philosophy as deferential to democratic institutions.
Finally, Lithwick notes that Brown is likely to be a potential Supreme Court nominee should Romney win in November, so we may well be hearing more from her in the future.