Prior to Brown’s hearing, serious concerns were raised about Brown’s criticism of long-established Supreme Court doctrine calling for strict scrutiny of government action infringing on fundamental constitutional rights, such as freedom of speech and the right to privacy. According to one Brown opinion, the “dichotomy” between the Court’s treatment of economic rights and its “hypervigilance with respect to an expanding array of judicially proclaimed fundamental rights is highly suspect, incoherent, and constitutionally invalid.”18 Brown’s testimony at the hearing reinforced these concerns.
In response to a question from Senator Hatch, Brown agreed that just as she was unhappy with the courts’ use of substantive due process to protect property rights during the Lochner era, she was critical of them for “using substantive due process thereafter” and that hers is a “mainstream” view.19 But after the Lochner era, although it was rejected as a basis for heightened protection of property rights, the due process clause has been an important part of the Supreme Court’s basis for protecting fundamental personal rights, such as the right of privacy and womens’ right to reproductive freedom.20 At the hearing, Brown derisively referred to a key basis for applying strict scrutiny to violations of fundamental rights, United States v. Carolene Products Co., 304 U.S. 144, 152-53 n.4 (1938), as “that infamous footnote.” Brown has criticized the courts for “finding constitutional rights which are nowhere mentioned in the Constitution;”21 as Senator Leahy pointed out, this would include such firmly established rights as the right to travel, the right of parents to direct the upbringing of their children, and the right to privacy. Although Brown stated that she “accept[s]” the Court’s decisions on the right of privacy, her continued criticism of established Court precedent on fundamental rights remains deeply troubling.
At the hearing, Brown attempted to defend her dissent in American Academy of Pediatrics v. Lungren, 940 P.2d 797 (Cal. 1997), in which the majority ruled that a California abortion parental consent law violated the right to privacy under the state constitution. She did not address the concern that her opinion conflicted with the Supreme Court’s rulings that a restrictive abortion law is invalid if many of its applications are unconstitutional.22 She adhered to her dissenting view that the California constitution did not accord greater privacy protections than the federal Constitution, and even suggested that a state constitution “cannot impose a more rigid standard on privacy,” an assertion that Senator Specter pointed out was clearly incorrect.
In addition, in response to questions from Senator Leahy, Brown expressed disturbing doubts even about the basic principle that the constitutional protections explicitly mentioned in the Bill of Rights apply to actions by state and local government. As Senator Leahy explained, the Supreme Court long ago ruled that the Fourteenth Amendment “incorporated” the Bill of Rights’ protections, so that state and local government, as well as the federal government, cannot deprive Americans of freedom of speech, the right to counsel, and other explicitly enumerated rights. Yet Brown gave a speech in 1999 suggesting that the argument against incorporation was “overwhelming” and that the Bill of Rights is “probably not incorporated, ” contrary to the Court’s rulings. At the hearing, Brown responded that she had since done some additional reading and that today, she thinks that her argument “probably is not entirely correct.” Senator Leahy remained concerned, noting that it remains disturbing that in 1999, long after she had been to law school and after many years of law practice, she was criticizing the well-established incorporation doctrine. Perhaps even more disturbing, Brown testified that even after her post-1999 research, she still considers it “anomalous” that the First Amendment is incorporated in the Fourteenth Amendment. Under that view, state and local governments could flagrantly violate Americans’ free speech, free press, freedom of religion, and other First Amendment rights. Such a radical theory raises even more concerns about Brown’s willingness to protect fundamental constitutional rights.
18 Kasler v. Lockyer, 2 P.3d 581, 601 (Cal. 2000)(concurring opinion) [add cert denied]
19 As discussed above, Brown appears to have become much more sympathetic to the use of substantive due process to protect property rights.
20 See E. Chemerinsky, Constitutional Law (1997) at 638-9, 657-85.
21 Speech to California Lincoln Club Libertarian Law Council (Dec. 11, 1997) at 7-8.
22 See National Partnership for Women and Families, Statement on the Nomination of Janice Rogers Brown at 3; PFAW-NAACP report at 12.