AUTHOR’S NOTE: My original post on this issue contained a blatant error of fact, for which I take full responsibility. Oddly, I had recognized the importance of this fact, and checked on it several different times, but somehow screwed it up anyway, which, as I said before, will teach me not to blog at 3:00 in the morning while jetlagged from a trip to Israel. I tried to correct the error through strikeouts and whatnot, but I think–and was indeed told–that by doing so I did not succeed in completely eliminating the unfair inference from my original post. Further strikeouts, etc., would leave the post unreadable. I’m not sure what the blog ethics or norms are in this regard, but I decided it was better to rewrite the post to eliminate my own errors and eliminate/edit related critical remarks than to leave them there. So here it is. Apologies again to Stuart Taylor, the Community Rights Council, and EarthJustice for my initial error, and some accompanying rhetoric, that, given the corrected error, was too harsh.
Unlike co-conspirator Orin, I’m not at all impressed with Stuart Taylor’s piece on Janice Rogers Brown.
Taylor raises plausible questions about whether Brown’s personal libertarian ideology will affect her judgments on the D.C. Circuit, and why conservatives have embraced a judge who, in her speeches, has praised a form of natural-law based judicial activism. However, unlike many circuit court nominees, Brown is not an unknown judicial quantity, but has served on the California Supreme Court and lower courts for many years. Thus, regardless of her rhetoric in speeches given to ideological audiences, we can actually judge her judicial performance on the record. Indeed, as a California Supreme Court Justice sitting on the highest court in the state, she had a lot more freedom of action to try to move the court in a libertarian activist direction that she would as a D.C. Circuit Judge. And I have seen no evidence, including no evidence from Taylor, that her opinions are anything but standard judicial opinions relying on precedent with nothing “radical” or “extremist” about them. In particular, I have seen no evidence that Brown has tried to revive Lochner as a California Supreme Court Justice under the state or Federal Constitution (and under the state constitution such rulings would not be subjected to U.S. Supreme Court review). On the record, I see no reason for the Senate to reject Brown as anything approaching a judicial extremist prone to ignoring precedent. Rather her opinions are sharp, pointed, well-reasoned, and firmly grounded in precedent.
Taylor raises Brown’s dissent in San Remo Hotel v. San Francisco, but I think his interpretation of it is misleading. She does not advocate a rule barring laws that “redistribut[e] wealth from one group to another.” [see further discussion below.] Rather, she cites both U.S. Supreme Court and California Supreme Court precedents for the proposition that public burdens such as housing the poor may not fall upon the property rights of small groups of public landowners, such as the owners of SRO housing in San Remo. Within the context of modern Takings law, this is not radical stuff. (See, e.g., the Warren Court Supreme Court case of Armstrong v. United States (1960): “The Fifth Amendment’s guarantee . . . was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”).
[see further discussion below]
According to Taylor: “She also cited with approval a 1985 book, Takings: Private Property and the Power of Eminent Domain. The author, Richard Epstein, has said that his theory would “invalidate much … 20th-century legislation.” But Brown actually cited Epstein in support of the proposition that many regulations of property are in fact constitutional under the Takings Clause. Here is the entire quote:
The law has long recognized, for example, that government might, in the exercise of the police power, act to proscribe a nuisance, and in so doing it need not pay compensation. (See, e.g., Civ. Code, § 3479; Code Civ. Proc., § 731.) Holmes spoke of “an average reciprocity of advantage” whereby a property regulation ultimately works for the enrichment of all, though it imposes specific limitations on the use of certain property. (Penna. Coal Co., at p. 415 [43 S.Ct. at p. 160].) For example, business owners on a popular shopping street might generally agree that their properties would be more attractive, and hence more valuable, if all the businesses used small, attractive signs rather than huge, garish billboards. Nevertheless, without regulation, competitive forces will inevitably cause business signs to become ever larger and more visually intrusive. No business owner wants to be the only one on a shopping street to have a small sign, and transaction costs often prevent owners from coming together to negotiate an agreement that would work to their common advantage. In that case, a regulation that has the immediate effect of reducing property value by restricting sign size, has the indirect effect of enhancing that value for all affected businesses. (See generally Epstein, Takings: Private Property and the Power of Eminent Domain (1985) pp. 195-215.)
Needless to say, this does not remotely resemble an endorsement of the antiredistribution thesis of Epstein’s book. [Rather, Brown is referring readers to the section of Epstein’s book that discusses, in some detail, the idea of implicit compensation as obviating any constitutional violation of the Takings Clause.]
Indeed, if guilt-by-citation is to be invoked, then perhaps Brown is actually very liberal: after all, in the same opinion she also cites one other academic Takings expert, with a rather different view than Epstein’s: Harvard’s Frank Michelman.
So where did Taylor get the idea that Brown’s opinion (which I urge you to read, it can be found at 27 Cal.4th 643) endorses a radical libertarian approach to the Takings Clause? Or that she endorses Epstein’s theory of Takings?
Taylor’s critique appears to rely on a report by the left-wing Community Rights Council and EarthJustice on Brown. The report states (deceptively) that Epstein’s Takings book is “cited favorably” in Brown’s San Remo dissent and that Epstein enthusiastically describes his views as “‘invalidat[ing] much of the twentieth century legislation.'”
In short, Taylor’s discussion of Brown’s opinion in San Remo bears striking resemblance to the Community Rights Council’s exaggerated interpretation of that opinion. I am disappointed that a normally excellent journalist like Taylor, whose work I’ve often admired, would rely on distorted information in a report by a biased interest group.
UPDATE: Taylor responds via email [I’ve deleted the part where he corrects my error, but an error is indeed what I made]: “[Rogers] does advocate a rule barring laws that redistribute wealth from one group to another. Relevant portions of her dissent follow:”
Our takings jurisprudence–both state and federal–has become so labyrinthine and compartmentalized that attempts to find just the right standard for the case often entirely miss the underlying point of the exercise. We speak of ad hoc inquiries, relevant factors, per se takings, and means-end . . . relationships. We chip away at the problem with separate lines of cases addressing distinct issues such as development permits and price controls. And all these efforts, valid as far as they go, leave us still groping for a basic conceptual approach that takes seriously the constitutional prohibition against uncompensated takings of private property. Thus, like the Wizard of Oz, we mystify our audience with the look and feel of great erudition, while concealing the humble reality that we have yet to solve the problem in a satisfactory way.
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“But the corollary of this rule–one I think is implicit in the takings clause of the state Constitution–is that a regulation is a taking if, rather than promoting ‘an average reciprocity of advantage’ it is merely designed to benefit one class of citizens at the expense of another; that is, if it simply shifts wealth by a raw act of government power.”
[Bernstein responds: First, near as I can tell, Brown is only talking about regulations of real property–which is what the Takings clause applies to, whereas Taylor claimed she advocated a rule barring all laws that redistribute wealth (and mentioned, as an example in a different part of his article, Social Security). Richard Epstein indeed thinks that all redisributive laws are unconstitutional under the Takings Clause. Between Taylor’s use of “laws” rather than “property regulations,” and his claim that Brown endorsed Epstein, I assumed, fairly I think, he was claiming that Brown, like Epstein, believes that all redistibutive laws, not just property regulations, are unconstitutional, which cannot be gleaned from this opinion. Second, it’s not at all clear how far Brown would actually go with her even more limited idea. Taylor deletes, in the quotation above, the fact that Rogers, on the issue of reciprocity of advantage is citing to that radical libertarian (sarcasm: off) Holmes’s opinion in the Pennsylvania Coal v. Mahon case, and indeed she consistently cites that opinion. [Note: I do not mean to claim that Taylor is trying to mislead anyone by deleting the citation to this opinion–citations are often omitted in legal quotations; it’s just that I think this citation is significant.] And her actual legal conclusion, is this: “In short, it might be perfectly legitimate for the City to help the low-income residents of San Francisco [note concession that redistribution is permitted if the burden is placed on the community as a whole], but it may not do so at the expense of some small class of persons simply by legislating a transfer of property rights.” So it’s possible that Brown has a rather robust theory of the Takings Clause (but one in keeping with cases such as Armstrong and Justice Scalia’s concurrence in the Pennell case), but not one nearly as radical as Richard Epstein’s, or as what Taylor seems to attribute to her. It’s also possible that Brown would only apply her theory when the taking goes “too far,” as in Mahon. Her actual legal conclusion in the case, as noted above, is in fact based not on a novel theory of takings, but on federal and state precedent (though, it’s fair to note that Takings law is an incredible morass, with opinions all over the map, and Brown choosing to rely on favorable ones). Finally, Brown’s opinion was only about the state constitution’s takings clause, which is both somewhat broader than the federal takings clause–“Private property may be taken or damaged for public use only when just compensation … has first been paid to … the owner”–and is not governed by federal precedent.]
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On the other hand, on reflection I concede that Professor Bernstein makes a fair point in criticizing me for reading too much into Justice Brown’s citation of Richard Epstein’s book…. — Stuart Taylor
FURTHER UPDATE: Clayton Cramer compares liberal outrage over Lochner with lack of liberal outrage over Lawrence. I agree that the cases are actually quite similar: traditional police power functions (regulation of working conditions, morals sex laws) declared by the Court to be unconstitutional because they violated an important right and had no third-party externalities or paternalistic health reasons (none at least asserted in Lawrence) to justify exercise of the police power. The big difference, I think is that Harlan made a persuasive case in the Lochner dissent that the law did perhaps protect workers’ health, while this was not at issue in Lawrence due to the state’s choice to argue that its law was based totally on moral disapproval, with no health rationale. Thus, Lawrence is easier than Lochner.
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