Profile: Justice Janice Brown
Author: Steven Wu
Source: SCOTUSblogPart 1: Biography.
Janice Rogers Brown is currently an Associate Justice of the California Supreme Court, where she has served since 1996. She is the first African-American woman to sit on California's highest court.
Brown was born in Alabama in 1949 and grew up amidst the tumult of the civil rights movement. After moving with her family to California while she was a teenager, Brown attended California State University in Sacramento and then enrolled in law school at UCLA.
After law school, Brown worked for two years (1977-1979) for California's Office of Legislative Counsel. She followed with an eight-year stint in the California Attorney General's Office, after which Governor George Deukmejian appointed her Deputy Secretary of the Business, Transportation, and Housing Agency. In 1991, Governor Pete Wilson appointed Brown to be his legal affairs secretary.
Brown's judicial experience began with her nomination by Wilson in 1994 to California's Third District Court of Appeals. In 1996, Wilson nominated Brown to the California Supreme Court. Brown's nomination to the California Supreme Court met with opposition from the State Bar of California's Commission on Judicial Nominees, which rated her "not qualified" due to her limited judicial experience and her tendency to express "gratuitous" political and philosophical views in her opinions. This was the second time Brown had been rated "not qualified" by the Commission: the previous "not qualified" rating in 1993 cost Brown her first chance on the state's highest court. However, Wilson ferociously defended Brown's qualifications, and she was soon confirmed.
Since ascending to the bench, Brown has become known both for her conservative views and her stinging dissents. The next few posts will explore several of her most prominent decisions and dissents.
Read Mike McKee's profile of Justice Brown here, and her California Supreme Court profile here.
Part 2: Most Controversial Decision
Justice Brown's highest profile decision is Hi-Voltage Wire Works Inc. v. City of San Jose, 24 Cal. 4th 537 (2000), for which she wrote the majority opinion striking down a San Jose program that offered preferential treatment to businesses owned by minorities or women.
Facts
The case concerns San Jose's Nondiscrimination/Nonpreferential Treatment Program Applicable to Construction Contracts in Excess of $50,000 ("the Program"). The Program requires contractors who are bidding for public works projects to make special outreach efforts to minority business enterprises (MBEs) and women business enterprises (WBEs). A bidding contractor is only excused from this "outreach requirement" if its bid meets a "participation requirement"; that is, if the bid contains a sufficient number of MBEs/WBEs to raise a presumption of nondiscrimination. Finally, if a contractor rejects bids from MBEs and WBEs, it must supply a written explanation for its rejection.
Plaintiff Hi-Voltage Wire Works, Inc., was the lowest bidder for a city contract. However, because Hi-Voltage planned to use its own work force, it failed to meet both the outreach and participation requirements of the Program. After San Jose rejected Hi-Voltage's bid, Hi-Voltage sued the city, challenging the Program as a violation of article I, section 31 of the California Constitution, which had been added to the California Constitution by Proposition 209.
Article I, section 31 says, in part:
The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, or ethnicity, or national origin in the operation of public employment, public education, or public contracting.
Discussion
Brown begins her opinion with a sweeping historical survey of governmental treatment of race. On the federal level, she cites Brown v. Board of Education, 347 U.S. 483 (1954), as establishing a "color-blind jurisprudence" that the Supreme Court later repeatedly re-affirmed. A similar understanding of the importance of color-blindness became enshrined in the Civil Rights Act of 1964, particularly in Title VII of the Act. On the state level, California courts also began with a marked hostility to all forms of race-consciousness; among other cases, Brown cites the original Bakke decision in California's courts, Bakke v. Regents of University of California, 553 P.2d 1152 (1976), which struck down an affirmative action program since "racial discrimination against a race--any race--is a dangerous concept fraught with potential for misuse."
Brown notes a "sea change" in the judicial treatment of race-consciousness starting with Steelworkers v. Weber, 443 U.S. 193 (1979), which found an affirmative action plan consistent with Title VII. California courts shortly followed suit, finding acceptable several race-conscious hiring programs, both public and private. Brown concludes her judicial history by re-emphasizing this "fundamental shift from a staunch antidiscrimination jurisprudence to approval, sometimes endorsement, of remedial race and sex-conscious governmental decisionmaking."
California's Proposition 209, approved on November 5, 1996, changed everything. By an extensive examination of the ballot pamphlet materials that accompanied Prop. 209, Brown concludes that Prop. 209 was intended by the voters to make the government "fair, color-blind, race-blind, gender-blind." San Jose clearly violated this directive because the Program required special outreach to MBEs and WBEs and encouraged what amounted to discriminatory quotas and set-asides.
Significance
Aside from Brown's judicial and legal credentials, her appeal as a potential federal judge stems from the fact that she is a minority woman who is clearly opposed to race- and gender-preferential programs. Hi-Voltage illustrates three aspects of this view.
First, Brown believes that the original understanding of the Fourteenth Amendment and of Title VII requires race- and gender-blindness, with race/gender-consciousness stepping in only to fashion remedies to specific violations of equal protection or actual demonstrated historic discrimination. The history she recounts in Hi-Voltage clearly suggests that the Supreme Court took a wrong turn with Weber when it began approving preferential policies.
Second, Brown believes that race/gender-blindness is an individual matter. That is, race/gender-blindness requires every individual to be judged on his or her merits, regardless of the composition of the individual's city or of the workforce to which he or she is applying.
Third, Brown suggests that under Proposition 209, even a compelling state interest and narrow tailoring are insufficient to justify a preferential program. She recognizes that federal "[e]qual protection [doctrine] allows discrimination and preferential treatment whenever a court determines they are justified by a compelling state interest and are narrowly tailored to address an identified remedial need." However, she construes this doctrine as an exception to the federal government's general mandate of equal protection. In other words, the "compelling interest" exception is an example of how the federal government has lowered the constitutional rights of its citizens to equal protection. This leads Brown to characterize Proposition 209 as a "greater protection" of Californians' constitutional rights.
Part 3: Liberal Civil Rights.
It is difficult to concisely categorize the ideology of Justice Janice Rogers Brown's decisions. In general, she tends to strongly support free speech and strongly oppose the state's power to search, in part because expansive search powers can lead to racial profiling. The following cases will highlight her views on these two issues.
In Kasky v. Nike Inc., 27 Cal.4th 939 (2002), now before the Supreme Court, defendant Nike Inc. challenged the application of a California law prohibiting false or misleading advertising as a violation of Nike's free speech rights. Nike had been sued for making misleading public statements responding to criticisms about its domestic and overseas employment practices. The majority ruled that the statute was not a violation of the First Amendment because the statements in question were commercial speech.
In her dissent, Justice Brown disagrees with the majority's test for commercial speech because it focuses on the identity of the speaker and the intended audience rather than the content of the speech; this contradicts fundamental First Amendment principles. Furthermore, Nike's commercial speech is "inextricably intertwined" with its noncommercial speech because Nike's "labor practices are the public issue."
All of this flows from existing Supreme Court doctrine. But Brown's dissent in Kasky has gained the most attention for Brown's criticism that the Supreme Court's commercial speech jurisprudence "fails to account for the realities of the modern world"; in her conclusion, she calls for the Supreme Court to "develop a more nuanced approach" and abandon its strict dichotomy between commercial and noncommercial speech. A decision by the Supreme Court that recognizes Brown's call for a fundamental rethinking of the doctrine will certainly advance her stature in the legal community.
Brown also strongly supported free speech in a dissent to Aguilar v. Avis Rent A Car System Inc., 21 Cal.4th 121 (1999). The case concerned an injunction by a trial court prohibiting an employee of Avis from using racial epithets against the plaintiffs. The employee challenged the injunction as a prior restraint on his free speech. The majority found that a remedial injunction to prevent further racial epithets does not violate the right to free speech if the epithets have contributed or will contribute to a hostile work environment that constitutes employment discrimination. Brown begins her dissent with a robust view of free speech as requiring the protection of all viewpoints, even viewpoints that are deeply offensive to others. "[T]hough the expression of such sentiments may cause much misery and mischief, hateful thoughts cannot be quelled at too great a cost to freedom." In this case, Brown finds little support for the suppression of free speech. (Justice Clarence Thomas later dissented from the U.S. Supreme Court’s failure to review the decision.)
In Golden Gateway Center v. Golden Gateway Tennants Assn., 26 Cal.4th 1013 (2001), however, Brown, writing for the majority, held that tenants in an apartment complex have no state constitutional right to distribute leaflets in that complex against an express prohibition by the complex's owners. Despite the California Supreme Court's landmark ruling in Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (1979), which extended California's free speech protection to occupants of privately owned shopping centers, Brown concludes from an extensive survey of the original intent of California's free speech clause that there is still a state action requirement that was not fulfilled in the instant case. What is most noticeable about Golden Gateway Center is Brown's commitment to originalism; however, as with her other decisions, she also methodically reviews the relevant precedent and, where original intent conflicts with precedent, she carefully distinguishes between the two.
Finally, Brown wrote the sole dissent in People v. McKay, 27 Cal.4th 601 (2002). In this Fourth Amendment case, defendant McKay sought to exclude evidence of drug possession that was discovered after he was stopped for riding his bicycle the wrong way on a residential street. The majority ruled against McKay and found the evidence admissible. Brown's dissent begins by noting that we must be extremely careful about giving the state the awesome privilege of search and seizure. She sarcastically emphasizes the meagerness of the basis for McKay's custodial arrest (he was arrested for failing to present his driver's license--even though he wasn't driving). Because police now have more power than ever to arrest citizens for minor offenses, Brown argues that the majority's ruling essentially gives the state "a virtually limitless power to search." With such power comes the potential for abuse. In particular, Brown raises the problem of racial profiling, which she strongly opposes. Against the argument that the majority's decision is mandated by precedent, Brown bitingly declares, "If our hands really are tied, it behooves us to gnaw through the ropes."
However, as fervently as Brown writes against the state's power to search in McKay, it is worth noting that in People v. Ray, 21 Cal.4th 464 (2001), Brown, writing for the majority, held that evidence collected in a warrantless search is admissible if (1) the police are "discharging one of their community caretaking functions . . . [and] act[ing] reasonably to protect the safety and security of persons and property," and (2) the evidence is in plain view. These two cases show that Brown has a strong commitment both to the perils and payoffs of police searches.
Part 4: Conservative Civil Rights.
Justice Janice Rogers Brown has written several opinions on "conservative" issues. Here, we will look at cases involving abortion, the death penalty, the association of gang members, and gun ownership.
In American Academy of Pediatrics v. Lungren, 16 Cal.4th 307 (1997), the majority struck down on state constitutional grounds a statute requiring pregnant minors to secure parental consent or judicial authorization before obtaining an abortion. In a lengthy dissent, Brown castigates the court for acting as a super-legislature. She states early in her dissent, "The fundamental flaw running throughout [the majority's] analysis is the utter lack of deference to the ordinary constraints of judicial decisionmaking--deference to state precedent, to federal precedent, to the collective judgment of our Legislature, and, ultimately, to the people we serve." She is particularly dismayed by the court's lack of deference when, as here, the standards dictated by state, federal, and legislative precedent are clearly derived from history, context, and text. With regard to the statute itself, it is notable that Brown (1) finds the statute's age limitation not unreasonable, and (2) acknowledges a liberty interest in parents' controlling their children that is "historically more sacrosanct than a minor's right to privacy."
In In re Andrews, 28 Cal.4th 1234 (2002), Brown, writing for the majority, upheld a death sentence for the defendant, who had committed several brutal murders and one rape, despite the defendant's claim that he was inadequately represented due to his attorney's failure to call a single witness during the sentencing phase. However, Brown notes that the defendant himself had adamantly opposed his attorney's attempts to contact his family to elicit testimony about the defendant's traumatic childhood. Furthermore, she finds that there was not a reasonable probability that, absent the attorney's errors, the defendant would have been excused from his death sentence; in particular, she agrees with the attorney's "tactical" decision not to present mitigating evidence, including interviews of fellow inmates of the defendant, due to problems of impeachment and possible counterproductivity. Nevertheless, the dissent express disbelief at Brown's lack of sympathy for the defendant's troubled past, calling her version of the facts a "clinically cold and cursory recitation of the evidence."
In People ex rel. Gallo v. Acuna, 14 Cal.4th 1090 (1997), Brown, writing for the majority, upheld an injunction prohibiting defendant gang members from legally congregating in certain areas, despite defendants' objections that the injunction violated their First Amendment associational rights. Brown wrote that the gang members' association simply did not rise to the level of meriting constitutional protection. To prove her point she utilized Supreme Court precedent to create a fairly narrow right to association.
It is hard to elucidate Brown's views on gun ownership. In Great Western Shows, Inc. v. County of Los Angeles, 27 Cal.4th 853 (2002), the majority held, first, that state law does not compel counties to allow their property to be used for gun shows; and second, that a county may regulate the sale of firearms on its property. Brown dissented from the holding, but on the narrow ground that, under state law, a county cannot "enact police power regulations governing the use of its property by independent parties to whom it has leased the property."
In another gun case, Kasler v. Lockyer, 23 Cal.4th 472 (2000), Brown, writing for the majority, upheld California's Assault Weapons Ban, but only over equal protection, separation of powers, and due process objections, not against a Second Amendment challenge. However, she does emphasize that the California constitution contains no fundamental right to bear arms; indeed, she points out that the regulation of firearms has always been a proper police function of California. Evident in Kasler, as in American Academy of Pediatrics, is Brown's strong principle of judicial deference to legislative findings.
Part 5: Miscellaneous.
In terms of specific issues, Justice Janice Rogers Brown will attract the most attention because of her strong belief in a color-blind Constitution. Her dissent in Kasky has also marked her as a proponent of free speech; if her suggestions in Kasky are followed by the Supreme Court, she will also be marked as an even stronger nominee for the federal judiciary. Finally, Brown has consistently urged judicial deference on her colleagues, showing a high respect for the special abilities of legislators over judges.
The cases discussed over the previous posts do not encompass the full range of Brown's decisions. One major case not discussed above is her majority decision in Pavlovich v. Superior Court, 29 Cal.4th 262 (2002), which held that plaintiff DVD Copy Control Association, Inc., could not establish personal jurisdiction in California over defendant Pavlovich, a resident of Texas, simply due to Pavlovich's posting of an illegal program online. Brown's decision was widely celebrated by the online community and has been recognized as an important decision that will shape the still fluid field of personal jurisdiction on the Internet.
A feature of Brown's decisions that may not have been clear these past few days is their trademark humor, which some people might characterize as mean-spirited sarcasm, and which can evoke the rhetoric of Justice Scalia. For instance, Brown begins her Kasky dissent with the following line: "In 1942, the United States Supreme Court, like a wizard trained at Hogwarts, waved its wand and plucked the commercial doctrine out of thin air" (internal quotations omitted). She compares the majority's decision in Kasky to the discovery of cold fusion because it "promises much, but solves nothing." She claims that the majority's test for commercial speech proves a maxim by H.L. Mencken: "every human problem" has a "solution" that is "neat, plausible, and wrong." And, to tie into her opening remark, Brown concludes that the Supreme Court should revise its commercial speech jurisprudence because "Merlin and Gandalf are busy." In American Academy of Pediatrics, Brown describes a passage of the plurality opinion as "a sentence whose length is exceeded only by its circuity." She also describes the plurality opinion as a "wholesale departure from more than 20 years of high court precedent [which] is itself wholly unprecedented" and compares the plurality's reasoning to Humpty Dumpty's wordplay in Alice in Wonderland. Her strong language has sometimes earned rebukes from other members of the court, but Brown seems to take pride in it.
Brown's sarcasm aside, her opinions seem to rebut the "not qualified" rating initially imposed upon her by the State Bar of California's Commission on Judicial Nominees. For the most part, they are well written and extensively researched. It is difficult to pin her down to any one modality of interpretation: although she seems to be extra-sympathetic to originalism, she also methodically lays out the relevant precedent and carefully distinguishes seemingly inconsistent cases on the way to her conclusions.
This careful, and at times overwhelming, attention to precedent also mitigates any assertion that she would be an activist judge. Aside from her general policy of judicial deference, Brown works hard to fit her own decisions into the narrative of state or federal precedent. When precedent diverges, either within or between courts, Brown makes the divergence clear and explains where her reasoning lies. This respect for precedent and the separation of powers is even more significant considering that Brown sits on a court of last resort for state claims, unlike her colleagues on the federal judiciary. But although Brown seems to faithfully follow precedent, her Kasky dissent shows that she is more than happy to raise strong objections to the existing precedent if she feels that it is somehow misguided.
Of course, it is impossible to discuss Brown's chances at a federal judgeship without mentioning the fact that she is a minority woman with some strong conservative views, including an appreciation of originalism and color-blindness, but with enough of a liberal bent to appease her critics. Whether those critics will actually be appeased is a question that will only be answered if President Bush nominates her for a seat in the federal judiciary.
