Last week, a federal judge in Washington issued a truly extraordinary opinion. Judge Janice Rogers Brown, of the U.S. Court of Appeals for the D.C. Circuit, went out of her way to challenge one of bedrock achievements of the 20th Century liberal legal establishment: the de-emphasis of economic rights, relative to other "fundamental rights," as a matter of constitutional law. Judge Brown's opinion already has sparked controversy, and it deserves closer scrutiny.
In Hettinga v. United States, dairy farm operators challenged the Milk Regulatory Equity Act of 2005, arguing that the law's redistributive provisions—which operate to even prices out among milk sellers—unfairly singled the farmers out in violation of various constitutional rights.
The court swiftly rejected their arguments, in accordance with long-settled Supreme Court precedent. And that's when things got interesting.
Judge Brown joined the court's unanimous opinion but she added a separate "concurring" opinion. The Hettingas had been forced to make convoluted arguments, she wrote, because the Supreme Court's long-established precedents prevented them from asserting a "simpler" one: namely, that that the Milk Regulatory Act had "impermissibly collectivized" the "operation and production of their enterprises."
Tracing the arc of 20th-century jurisprudence, Judge Brown (with Chief Judge David Sentelle, who joined her opinion) criticized the Supreme Court's New Deal Era decisions, which opened the door to aggressive federal and state regulation of economic activity. Most famously, in Carolene Products (1938), the Court declared that it would treat economic regulations as presumptively constitutional, and devote tougher scrutiny only to laws violating "a specific prohibition of the Constitution, such as those of the first ten amendments." And in other seminal cases, cited by Judge Brown, the Court endorsed state power to "adopt whatever economic policy may reasonably be deemed to promote public welfare," so long as "there is any reasonably conceivable state of facts that could provide a rational basis." Under this broadly deferential theory of state and federal power, the Court would presume that "improvident" economic policies would "eventually be rectified by the democratic process."
Such deference to economic regulation flies in the face of the Founding Fathers' design, Judge Brown argues, because the Constitution was intended to protect economic rights against majoritarian domination; if economic liberty truly is a matter of constitutional rights, then it must receive stronger protection in the courts. She reinforces this point by citing modern scholarship on the question of political ignorance, which indicates (in Judge Brown's words) that "the hope of correction at the ballot box is purely illusory." Given that there is no real hope for pro-market democratic reform, Judge Brown finds us left with nothing better than milk laws that are (quoting Judge Richard Posner) "intended to redistribute wealth from consumers of milk to producers of milk." This is just the latest proof that "America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers."
And so in the end, even if the Milk Regulatory Equity Act was drafted and enacted according to purely legal procedures, to Judge Brown "it just seems like a crime." The Supreme Court's deferential stance on economic regulation "means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect—a lot more."
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.
The closest she has come to staking a position on this critical question seems to have been in her 2003 Senate confirmation hearing, when Senator Dick Durbin pressed her on the issue:
I’m not saying that you could never regulate property. Property has been regulated since ... the beginning of this country. I’m not saying that you could never have laws that say that people who are in a business that you regulate have to behave in a certain way. California has a very long history of anti-discrimination laws that says if you are a commercial establishment, you have to treat everybody the same. I don’t think there’s any problem with that at all.
Yet that description of economic rights seems little different from the pitifully low "rational basis" standard that Judge Brown decried then and now. If traditional state economic regulations, such as California's, would survive under Judge Brown's view of constitutional property rights, then it is hard to see what regulations would not pass constitutional muster; it certainly is hard to see why the federal Milk Regulatory Equity Act would be obviously unconstitutional under such a standard. Again, at the outset of her opinion, Judge Brown suggests it would have been "simpler" to argue that the Milk Regulatory Equity Act "impermissibly collectivized" the farmers' enterprises, violating the farmers' constitutional property rights. But even if you accept her position that the Constitution protects economic liberty no less than other Constitutional rights, the still-answered questions are far from "simple."
And there is one more wrinkle. Judge Brown's and Chief Judge Sentelle's call for heightened protection of property rights casts an interesting light on another controversial case decided by the D.C. Circuit just four years ago. In Abigail Alliance v. Eschenbach, the D.C. Circuit—the full court, not just an ordinary three-judge panel—held that the Constitution does not protect terminally ill patients' right to access experimental drugs that have not yet received full FDA approval. More specifically, the Court's majority—including Brown and Sentelle—agreed that the asserted right to obtain such drugs would be subject only to scrutiny under the "rational basis" standard that Brown and Sentelle decried in last week's opinion. If, as they explain in their new opinion, the right to "property" is owed heightened scrutiny because it appears alongside "liberty" in the Constitution's right to due process, then shouldn't the right to "life" receive the same heightened scrutiny? (Two of their colleagues dissented in that case, concluding that this right to life deserved the heightened protection afforded by "strict scrutiny.")
To be clear, none of this is to say that Judge Brown and Chief Judge Sentelle did not take a laudable first step in questioning whether property rights deserve greater protection than FDR's Supreme Court was willing to provide at the height of the New Deal. They are making a very important point—especially in an era when Tea Party conservatives seem increasingly willing to embrace judicial activism in defense of constitutional rights. But they would do no less a service by pressing the point further, explaining what sort of judicial standards of review would be necessary to actually protect constitutional property rights in practice. These are not "simple" questions, but they are indispensable ones—today more than ever.
Adam J. White is a lawyer in Washington, D.C.