Senators asked Brown a number of questions about the views expressed in both her speeches and opinions on “private property” rights and the long discredited Supreme Court decisions striking down New Deal and other progressive social and economic legislation, beginning with the Court’s ruling in Lochner v. New York, 198 U.S. 45 (1905). During the so-called Lochner era, which ended in 1937, the court struck down laws regulating minimum wages, working hours and conditions, worker protection, and improper business practices, all in the name of “protecting” private property or freedom of contract. Senators of both parties at the hearing decried Lochner, noting that it has been criticized even by Judge Robert Bork. But there was significant controversy over Brown’s views in this area.
Several senators questioned Brown about dissenting opinions in which she has argued for invalidating important laws for the sake of private property interests, as well as statements in speeches appearing to approve of Lochner. In one speech, Brown stated flatly that Justice Holmes’ famous dissent in Lochner was “simply wrong.”14 Brown answered by stating that her speech was only suggesting that Justice Holmes was wrong in suggesting that the Constitution was not intended to embody a particular economic theory, and that she has stated in one of her decisions that Lochner was “justly criticized” for using substantive due process theories to insert judges’ personal social and economic views into the Constitution.15
In fact, however, Brown appears to have retreated from this earlier criticism of Lochner and substantive due process as a way to protect property owners. In a speech delivered a year after her opinion suggesting that Lochner had been “justly criticized,” she stated that as a conservative judge, she had “initially accepted the conventional wisdom that substantive due process was a myth invented by judicial activists who were up to no good” and that “Lochnerism is the strongest pejorative known to American law.” She explained, however, that she has come to realize that there are “problems with dismissing the idea of substance in the due process clause,” and that it is necessary to invoke “limits on the power of government.” In particular, she claimed, there is a “small but credible body of scholarship” demonstrating that the due process clause was “viewed as a restraint on government,” designed “in part, to protect the rights of property owners.”16 In other words, despite her earlier criticism of Lochner, she appears to approve of its discredited theories in order to “protect” private property from government regulation.
Regardless of whether Brown’s theories are viewed as an attempt to revive Lochner or to rely on the “takings” clause or other constitutional provisions, Brown’s testimony reinforced the suggestions in her opinions and speeches that what she regards as government infringement on private property rights should be vigorously scrutinized. But Brown’s opinions demonstrate that her views on what constitutes “infringement” of property rights are extreme and would seriously threaten laws protecting the environment, promoting affordable housing, and accomplishing other important objectives.17 This was most clearly demonstrated at the hearing by the questioning concerning her dissent urging the invalidation of a San Francisco housing assistance ordinance, San Remo Hotel L.P. v, City and County of San Francisco, 41 P.3d 87 (Cal. 2002).
In San Remo, the California Supreme Court upheld a city ordinance providing that if a hotel owner wants to eliminate residential hotel units and convert to tourist units, it must contribute to helping provide housing for the low income, elderly, and disabled tenants displaced as a result. Brown vigorously dissented, claiming that as a result of the ruling, “private property, already an endangered species in California, is entirely extinct in San Francisco.” Id. at 120. She asserted that the ordinance constituted an unconstitutional “taking” of private property by government without compensation, resulting in “theft” and “[t]urning a democracy into a kleptocracy.” Id. at 128. Every other justice on the court disagreed.
Despite questioning from several senators, Brown adhered to her statements and views in San Remo, commenting that “the cases say what they say.” Senator Feinstein asked her to justify her assertion that the ordinance, which simply called for payment of fees based on possible future uses of hotel property, constituted a “taking” of private property by government. Despite her concession that the city did not directly interfere with the hotel owners’ ownership rights, Brown claimed that it was a “taking” because the city was saying that owners must pay “ransom” if they want to convert hotel property to tourist use – a characterization and a theory squarely rejected by every other member of her court. In trying to justify her view, Brown suggested an analogy: to her, it would clearly constitute a “taking” if government said that in order to relieve traffic congestion in the city, a car owner could not drive alone in certain areas during certain hours but had to “pick up someone from the casual car pool.” This remarkable claim by Brown comes close to suggesting that HOV lane requirements, which mandate that cars have two or more passengers in order to drive in certain areas during rush hour, constitute an unconstitutional “taking” of private property. As the court majority pointedly noted in San Remo, “nothing in the law of takings would justify an appointed judiciary in imposing” Brown’s “personal theory of political economy on the people of a democratic state.” Id. at 110. Brown’s “personal theories” in the area of private property rights are clearly extreme.
14 Speech to Federalist Society (April 20, 2000)(“Federalist”) at 8.
15 Santa Monica Beach, Ltd. v. Superior Court, 968 P.2d 993, 1026 (1999)(Brown, J., dissenting) [tr 122-24]
16 IFJ at 3,4.
17 See PFAW-NAACP Report at 2, 23-4, 35-6; Community Rights Counsel and Earthjusitce, Janice Rogers Brown and the Environment: A Dangerous Choice for a Critical Court (Oct. 21, 2003).