In a concurring opinion today in Hettinga v. United States, Judge Janice Rogers Brown (joined by Judge Sentelle) contends that the Supreme Court should overturn its rational basis caselaw in the economic area and return to a Lochner-era regime of judicial scrutiny for economic regulations. . . .
It is unsurprising that Judge Brown holds these views: She expressed some similar points in a 2000 speech before the Federalist Society chapter at the University of Chicago. And I’m always pleased when my co-bloggers are cited in judicial opinions. At the same time, I’m not convinced of the propriety of placing these views in the Federal Reporter instead of a law review or published speech. Questions of judicial propriety are matters of taste, of course. But given that these views have no obvious relevance to the job of a lower court judge, and yet resonate with certain current political movements, a decision by judges to publish such comments in a judicial opinion (even in a non-binding concurrence) runs a risk of being perceived as blending political and judicial roles. In my view, it’s better to keep the roles more separate by reserving criticisms of settled Supreme Court doctrine to contexts like speeches and articles that are clearly outside the judicial capacity. But then I realize I am more squeamish about such matters than others.
Incidentally, I’m reminded of a somewhat analogous example of liberal judges using a concurring opinion to express rather fiery disagreement with a conservative Supreme Court ruling: The concurring opinion of Judges Boyce Martin and Gilbert Merritt in United States v. Almany, which I criticized here. It’s not exactly analogous, and obviously the issue had less ideological valence. But I think it’s an interesting example to consider.
I am not sure if Orin’s comment is limited to lower-court judges, or more broadly. Justice Thomas has issued very similar concurrences, where he wishes to rethink the last 70 years of the Court’s jurisprudence quite frequently.
David Schraub (whom I alluded to in my earlier post about Brown’s opinion) wants to keep Lochner dead, and attacks Brown on the merits:
But second, even if Judge Brown may well be right that most economic legislation is a series of interest group power plays, her critique tackles our democratic system in general. There’s nothing really unique abouteconomic legislation with respect to her concerns. Political ignorance is not just restricted to economic redistribution; it applies across the board. Democracy always is in a weak position to “right itself” with respect to a (potentially mythical) “common good”. We are stuck in a system of pluralistic interest-group bargaining, whether we like it or not.
Hence, Judge Brown argument doesn’t support strict scrutiny for economic regulation — it supports strict scrutiny for every law Congress passes. Which may cause my libertarian friends to swoon, but which seems largely incompatible with the supposedly limited role for the judiciary as subservient to the will of the people (imperfect as it may be). And it’s notable that even that stance doesn’t actually fix the “problem” Judge Brown purports to be tackling, because Congress’ decisions notto regulate this or that area is subject to the same interest-group pressures as their decision to regulate (as usual, activity and inactivity is not really any distinction at all). At any rate, there is no evidence that Judge Brown intends to take such a bold position — strict scrutiny for laws prohibiting gay marriage (and laws which support it), strict scrutiny for affirmative action and for banning it, strict scrutiny for anything and everything.
This is right, so long as legislation can be enacted in the first placed that enables interest-group bargaining to be successful. Carolene Products is only half the battle. Applying rational basis review to economic regulation cases must be bundled together with emasculating any meaningful limitations on the doctrine of enumerated powers (for the federal government) and issues of due process, contract impairment, and bill of attainders (for the states). When the latter dies, the former’s death is a mere formality.