In her speeches and writings, particularly since her appointment to the California Supreme Court, Brown has revealed an extremely conservative, anti-government political philosophy. Far from remaining theoretical or extolling purely personal views, Brown has incorporated them directly into her judicial philosophy and opinions, even when contrary to settled precedent and legal principles protecting constitutional and civil rights.
For example, as discussed above, Justice Brown has criticized and directly challenged the fundamental principle of constitutional adjudication, which marked the end of the Lochner era, under which government action infringing on fundamental rights is subject to strict scrutiny while general social and economic legislation is upheld if it has a rational basis. Several years before she raised this challenge in what she has characterized as one of her ten most significant opinions, Brown gave a speech to the California Lincoln Club’s Libertarian Law Council in which she criticized courts for “enunciating standards of constitutional review which are not standards at all but rather policy vetoes, i.e. strict scrutiny and the compelling state interest standard.” Speech before California Lincoln Club Libertarian Law Council (Dec. 11, 1997)(“Libertarian”) at 7-8.10
Brown went even further in a speech to the Federalist Society, appearing to attack not only the Court’s long-established standard of review, but also the rise of the New Deal and the demise of the Lochner era, in which the Supreme Court had repeatedly struck down New Deal and other progressive laws as violating property or economic rights. She explained that she believed that Justice Oliver Wendell Holmes’ dissent in Lochner, in which he stated that the Constitution “is not intended to embody a particular economic theory,” was “simply wrong.” A Whiter Shade of Pale, Speech before Federalist Society, University of Chicago Law School (April 20, 2000)(“Federalist”) at 8.
According to Brown, what she called “collectivism” is “fundamentally incompatible with the vision that undergirded this country’s founding,” but the New Deal improperly “inoculated the federal Constitution with a kind of underground collectivist mentality” and “transmuted” the Constitution “into a significantly different document.” Id. She suggested that 1937, when the Court repudiated Lochner, marked “the triumph of our own socialist revolution.” Id. at 10. The effect, according to Brown, was to “repudiate, both philosophically and in legal doctrine, the framers’ conception of humanity” and to “cut away the very ground on which the Constitution rests.” Id. at 11. “In the New Deal/Great Society era,” Brown lamented, “a rule that was the polar opposite of the classical era of American law reined”, including the two-tier rational basis/strict scrutiny standard that she criticized. Id. at 12. “Protection of property was a major casualty of the Revolution of 1937,” she proclaimed, leading to what she called a “disaster” of “epic proportions” that has “befallen millions of people during the ensuing decades.” Id. at 12, 13.
Such aggressive advocacy concerning property rights is reflected in a number of Brown’s opinions on property-related issues. In fact, she has drawn criticism from the California Supreme Court majority, as in one case where Brown attempted to impose a “personal theory of political economy on the people of a democratic state,” as discussed above. San Remo, supra, 41 P.3d at 110. Some of the rhetoric used by Brown to challenge established precedent and to aggressively push property rights was first used by her in speeches, particularly to right-wing groups. For example, she accused the majority in San Remo of “[t]urning a democracy into a kleptocracy.” Id. at 128. Several years earlier, in a speech to the right-wing Institute for Justice, she similarly warned that without what she termed effective limits on the power of government , “a democracy is inevitably transformed into a Kleptocracy.” Fifty Ways to Lose Your Freedom, Speech before Institute for Justice (Aug. 12, 2000) (“Institute”) at 4. Brown went on to praise “natural law” and the use of the due process clause in our early history to “protect the rights of property owners”, claiming that the founders “revered” the right of property as “the guardian of every other right.” Id. at 6, 4,5. Compare also Landgate, supra, 953 P.2d at 1212 (describing the takings clause as a “last lonely bulwark of property rights” against the “relentless siphon” of government) with The History of the World Part 3,912, Speech before Institute of Legislative Practice, McGeorge School of Law (Nov. 21, 1997) (“McGeorge”) at 18 (describing government as a “giant siphon, extracting wealth, creating privilege and power, and redistributing it”).
In a number of her speeches, Brown has used harsh rhetoric to express disdain not only for government, but also for much of the judiciary and its protection of people’s rights. According to Brown, particularly over the last 30 years, government has been “transformed from a necessary evil to a nanny,” Institute at 2, or a “goody bag to solve our private problems.” Hyphenasia: The Mercy Killing of the American Dream, Speech at Claremont-McKenna College (Sept. 16, 1999) at 4. America has become “a nation of whiners,” Brown has proclaimed, and political leaders are “handing out new rights like lollipops in the dentist’s office.” 1996 Law Day Speech, Speech before Sacramento County Bar Association (May 1, 1996) at 8, 6-7. According to Brown, “liberalism’s vaunted tolerance and openness is a lie,” and “liberalism is tolerant only of those concerns to which it is indifferent,” such as “trivialized forms of religious observance which amount to no more than a consumer preference.” Higher Ground, Speech before St. Thomas More Society of Santa Clara County (Oct. 15, 1998) at 8.
Even more extreme was the indictment of government she delivered before the Federalist Society:
Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility; and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.Brown has been almost as critical of her colleagues in the judiciary. In addition to attacking “strict scrutiny” review, she has derisively characterized the courts as “constitutionalizing everything possible, finding constitutional rights which are nowhere mentioned in the Constitution,” and “taking a few words which are in the Constitution like ‘due process’ and ‘equal protection’ and imbuing them with elaborate and highly implausible etymologies.” McGeorge at 13; Libertarian at 7.
Federalist at 8.
Brown has described decisions of supreme courts, including her own, as “ever more ad hoc and expedient, perilously adrift on the roiling seas of feckless photo-op compassion and political correctness.” Institute at 15. For example, she wrote in 1993 that “lawyers have secured the right of topless dancers to perform, but have banished prayer from public life” and “won the right for indigents to take over public spaces, even our children’s libraries, and for the mentally ill to live on streets and shout obscenities at passersby.” Brown, Politics: A Vision for Change, The Docket (Dec. 19, 1993) at 15. Partly as a result of the judiciary, she has charged, we are “heirs to a mind-numbing bureaucracy” and “subject to a level of legalization that cannot avoid being arbitrary, capricious, and discriminatory.” Libertarian at 5-6. Such extreme views and rhetoric further reinforce concerns about Brown’s record on the bench.
10 Copies of the speeches and articles by Brown referred to in this report, which were provided by Brown to the Senate Judiciary Committee, are available from People For the American Way.