Worker Rights, Consumer Protection and Private Property Rights

Several cases raise serious questions about Brown’s willingness to enforce provisions intended to protect the average person against the power of the government or large corporations. Brown has signaled her approval of broad drug-testing provisions even in situations in which a majority of the California Supreme Court found the tests to be clearly unconstitutional, and even where it would have required explicitly rejecting U.S. Supreme Court precedent. She also wrote an opinion as a judge on the Court of Appeal that would have struck down the fee system the state had instituted to ensure that paint companies help pay for state efforts to provide for screening and treatment of children exposed to lead paint, an opinion that was overturned by the California Supreme Court. She has dissented from several rulings protecting the rights of investors and other consumers, arguing that previous precedents should be abandoned.

In dissents from decisions on rent control and a decision upholding a city ordinance protecting against displacement of low income residents, she articulated an extremist view of property rights that would, if she were given the power of a seat on the DC Circuit, have dangerous and far-reaching consequences for environmental protection and government regulation of businesses.

She vigorously dissented from a case concerning a San Francisco rule requiring residential hotel owners seeking permission to eliminate residential units and convert to tourist hotels to help replace the lost rental units. Brown’s dissent said the ruling approved “theft” and said it turned democracy into a “kleptocracy.” Brown’s theory that regulations are not allowed unless property owners agree they would benefit them economically would preclude much economic or environmental regulation. “Nothing in the law of takings,” wrote the majority, would justify an appointed judiciary in imposing that, or any other, personal theory of political economy on the people of a democratic state.”

In several speeches and one of her opinions, Brown has attacked the long-established principle that governmental action infringing on fundamental rights is subject to strict judicial scrutiny while general social and economic legislation is upheld if it has a rational basis. According to Brown, that fundamental principle is “highly suspect, incoherent, and constitutionally invalid.”

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