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‘The Constitutional Guarantee of Liberty Deserves More Respect’

But how much more?

12:00 AM, Apr 20, 2012 • By ADAM J. WHITE
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Now, as Orin Kerr notes at the Volokh Conspiracy, this is hardly the first time that Judge Brown has staked out a fiercely libertarian view of constitutional economic liberty. Her nomination to the D.C. Circuit was among President George W. Bush's most controversial nominations in large part because of two speeches she gave in 2000, and a dissenting opinion she wrote from the California Supreme Court in 2002, in which she staked out comparable positions in comparably memorable rhetoric.

Kerr criticizes Judge Brown and Chief Judge Sentelle for saying too much: If they wanted to criticize Supreme Court precedents on points not necessary for the resolution of the case at hand, he argues, they should have published their criticisms in a law review article instead. But Kerr concedes that this is a point on which reasonable minds can disagree. For what it's worth, I am glad to see judges willing to make these types of points in published opinions. Judicial opinions—unlike belated law review articles—can have a much more immediate impact in the Supreme Court. And in any event, the process is more transparent when the judges freely explain what's really on their mind. And so I applaud judges for their candor—so long as their preparation of long, ancillary opinions does not materially delay the Court from issuing decisions. (As a practicing lawyer, I have my biases.)

If anything, I would criticize Judge Brown and Chief Judge Sentelle not for saying too much, but for saying too little. Because no matter how many times I read this opinion, I'm still left scratching my head over exactly what it is that they endorse.

Judge Brown and Chief Judge Sentelle make clear that they want the Supreme Court to put economic rights back on par with other constitutional rights, but what would that mean in substance? If the Court accepted their criticism, and ended the deferential "rational basis" standard for reviewing economic regulations, then what standard would the Court establish in its place? If the "rational basis" standard currently applicable to economic regulations is too low, then must the Court protect economic rights with "strict scrutiny," the virtually insurmountable test for laws violating fundamental constitutional rights? ("Strict in theory, fatal in fact," the saying goes.) Or should the Court adopt some amorphous, intermediate level of scrutiny?

This is no small question; we saw precisely the same point raised in the last decade's litigation over the Second Amendment. The Supreme Court held in Heller that the Second Amendment protected an individual right to keep and bear arms, but it failed to specify precisely what standard would justify limitations on that right. The Bush administration angered many conservatives by arguing in Heller that the Court should protect the Second Amendment not with strict scrutiny, but with "heightened judicial scrutiny" that would leave room for federal and state governments to impose "reasonable restrictions" on the exercise of Second Amendment rights. That standard was sufficiently low—or sufficiently ambiguous—that Senator Barack Obama adopted basically the same position on Second Amendment rights during the 2008 presidential campaign.

In short, to declare that economic rights deserve treatment equal to other rights is, if anything, only the very beginning of a long discussion. The important question is the standard that governments must satisfy to limit that right.

Judge Brown's opinion offers no suggested alternative. (Various liberal critics quickly accused her of calling for a return to the Lochner era, in which the Court protected property rights with very strict standards of review. I don't know what judicial opinion they were reading, but it certainly wasn't Judge Brown's.) Moreover, I find no clear answer to this question in any of her prior writings—nor in her much remarked Constitution Day address to the Heritage Foundation last year.

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