Jeffrey Rosen: Obamacare Isn’t the Only Target of Conservative Judges

Jeffrey Rosen is the legal affairs editor of The New Republic. This article originally appeared in the May 24, 2012 issue of the magazine.

...IN 2005, IN AN ARTICLE for The New York Times Magazine, I described a nascent movement of pro-business and libertarian federal judges and think tank activists who hoped to resurrect what one judge called “the Constitution in Exile.” The term referred to a series of legal doctrines that have been dormant since the New Deal but which judges could use to dismantle the post–New Deal regulatory state, including economic regulations, health and safety laws, and environmental laws.

Janice Rogers Brown has long been sympathetic to these goals. A daughter of sharecroppers, she denounced the New Deal in a series of speeches before her confirmation to the D.C. Circuit in 2005. She called 1937—the year the Supreme Court began to uphold the New Deal—“the triumph of our own socialist revolution.” In the same speech, she argued that “protection of property was a major casualty of the revolution of 1937.” During her first years on the federal bench, however, Brown was mostly quiet about her anti-regulatory views.

Then, in her April 13 opinion, she dramatically unmasked herself. Although Brown concurred with the decision to uphold the mandate because there were too many Supreme Court precedents for a lower court to ignore, she also made clear her disagreement with the past 75 years of Supreme Court cases directing judges to defer to Congress and the executive branch on economic regulation.

The milk regulation, she wrote, “reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers.” She added that the courts “have been negotiating the terms of surrender since the 1930s.” Brown went on to denounce landmark Supreme Court decisions issued after Franklin Roosevelt’s Court-packing plan, lamenting that “the Court abdicated its constitutional duty to protect economic rights completely.” And she decried “the political temptation to exploit the public appetite for other people’s money—either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.” (The unattributed reference to Louis Brandeis’s classic exposé of economic populism, Other People’s Money, is perverse, since Justice Brandeis supported the very Supreme Court decisions deferring to economic regulations that Brown is denouncing.)...