Five Memorable Opinions From Retiring DC Judge Janice Rogers Brown
ALM Media
Updated
Ask anyone to describe Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit's writing style and you'll likely hear the word "fiery." But the flame is set to extinguish, at least at the D.C. Circuit, come August.
Brown, a George W. Bush appointee who has served on the court since 2005, will step down from the court Aug. 31. Brown will not take senior status, according to a Monday press release, but will retire altogether. Though conservative, Brown's voice is unique among the 11 active judges on the bench at the E. Barrett Prettyman Courthouse.
"She's very much a Renaissance woman. She is always reading and thinking and challenging herself, and she's been doing it her whole life," said Brigham Young University Law professor Aaron Nielson, a former clerk to Brown. "That's going to be the real loss on the court, because you can't replicate that."
Brown was nominated in 2003, and her confirmation at the Senate was controversial. Democratic lawmakers contended she was too extreme to be a federal judge, based on her judicial opinions on the California Supreme Court and public speeches. Then-Sen. Barack Obama spoke against her nomination on the Senate floor. She was renominated and finally confirmed two years later, by a vote of 56 43.
Brown is thus one of the more conservative judges on the court, though her viewpoint is usually described as libertarian.
"She really values individual liberty and the protection of individuals from the government," said Shon Hopwood, another former clerk and professor at Georgetown University Law School. "That's a pretty common theme throughout many of her opinions."
Former clerks were quick to point out that labeling Brown is a misguided endeavor. Nielson said that despite her provocative writing, in person, he might even call her shy. She's also known for sending elaborate birthday cards to her clerks' children, whom she refers to as "grandclerks." Her husband, Dewey Parker, is a jazz musician.
Still, it's the bold concurring opinions and dissents that Brown is perhaps best known for, though even her majority opinions could pack a punch.
"When you're reading a Judge Brown dissent, you're really getting Judge Brown. It's not to make a scene, it's just her thinking. There's an honesty to it," Nielson said.
From drones to milk, here are some of the judge's recent memorable opinions:
"Congressional oversight is a joke and a bad one at that." In a concurring opinion just last month, Brown criticized the lack of oversight in the U.S. drone program. The D.C. Circuit dismissed a lawsuit brought by a Yemeni man who claimed the United States illegally killed members of his family in a drone strike. The three-judge panel Brown, as well as Judges Cornelia Pillard and Sri Srinivasan, ruled that the court did not have jurisdiction to hear the case. Brown authored the majority opinion, but also wrote her own concurrence to decry the government's drone policy. "Our democracy is broken," Brown wrote. "We must, however, hope that it is not incurably so." She concluded with dialogue from Robert Bolt's 1960 play about Thomas More, "A Man for All Seasons."
"This is not justice. It is not even law." Brown dissented from the court's May decision upholding the district court's approval of a revised settlement agreement between Native American farmers discriminated against by the government. The agreement meant that $380 million in unclaimed compensation funds from the original class action settlement would be distributed to nonprofits working with American Indian farmers. In her dissent, Brown essentially accused the government of stealing. She said the money should be given back to the Treasury and the taxpayers. "Perhaps one day, I will possess my colleagues' schadenfreude toward the executive branch raiding hundreds-of-millions of taxpayer dollars out of the Treasury, putting them into a slush fund disguised as a settlement, and then doling the money out to whatever constituency the executive wants bankrolled. But, that day is not today," Brown wrote.
"So wrong Stevie Wonder could see the flaw from a phone booth in Chicago." In this opinion from last year, the D.C. Circuit ruled that the federal government had to return withheld tax refunds to an employee of government contractor Blackhawk Inc., who pleaded guilty to making false statements in connection with a scheme to charge the government more for the company's services. Brown wrote a concurring opinion to point out the injustice of the government's actions. "This is a case in which the government behaved badly and even when the unpalatable implications of their actions became evident exhibited neither remorse nor gallantry," Brown wrote. She went on to write that even blind musician Stevie Wonder could have seen the flaws in the government's reasoning. "The fact that the government cannot is deeply disturbing," Brown wrote.
"I write separately to ... note the consequences of our modern obsession with a myopic and constrained notion of standing." In a 2015 case, Sheriff Joe Arpaio of Maricopa County, Arizona now on trial himself for contempt of court tried to challenge President Barack Obama's programs allowing deferred action from deportation for some immigrants on the grounds that the programs interfered with his duty to keep his community safe, causing him harm. The D.C. Circuit ruled that Arpaio did not have standing to bring such claims, because they were too speculative. Brown agreed, but wrote on her own to emphasize her concerns about the jurisprudence on standing. "Today's holding puts the consequences of our standing jurisprudence in stark relief. If an elected sheriff responsible for the security of a county with a population larger than 21 states cannot bring suit, individual litigants will find it even more difficult to bring similar challenges," she wrote.
"Rational basis review means property is at the mercy of the pillagers." Following this 2012 opinion, Brown received a fair amount of criticism that she had used her concurrence to espouse her own libertarian views. In the case, two dairy farmers who both produced and distributed milk challenged federal economic regulations that required them to pay money into a fund for other milk producers. The D.C. Circuit dismissed the case, accepting the government's argument that there was a "rational basis" for the law. In her concurrence, joined by then-Chief Judge David Sentelle, Brown called on the Supreme Court to revise its doctrine with respect to economic liberty. "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," Brown wrote. "And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s."
