E-M:/ Janice Rogers Brown out of 9-0 Supreme Court Mainstream on "Takings"

Brown out of 9-0 Supreme Court Mainstream

D.C. Circuit nominee Janice Brown?s views are so out of the mainstream that they have just been soundly rejected in a unanimous Supreme Court decision that did not even draw a comment in concurrence from Justices Scalia or Thomas. Like the district court in Lingle v. Chevron, No.04-163, --S.Ct.--, 2005 WL 1200710 (May 23, 2005), Brown has argued?quite stridently?that government regulations should be closely scrutinized under a heightened standard of review when challenged as a taking of property without just compensation. The Supreme Court unanimously found that this view was ?remarkable? since the reasons for deference to legislative judgments ?are by now well established,? and ?government hardly could go on? if every regulation that diminished property values was considered a taking.

In San Remo Hotel L.P. v. City and County of San Francisco, 27 Cal. 4^th 643 (2002), the California Supreme Court majority followed an approach similar to the U.S. Supreme Court in Lingle to uphold a San Francisco development fee used to promote affordable housing. Brown issued a vitriolic, solo dissent: ?If enough people get together and act in concert, they can take something and not pay for it. But theft is still theft?. Turning a democracy into a kleptocracy does not enhance the statute of the thieves; it only diminishes the legitimacy of the government ?. The right to express one?s individuality and essential human dignity through the free use of property is just as important as the right to do so through speech, the press, or the free exercise of religion.? Id. at 704 (Brown, J., dissenting). The San Remo majority noted that Brown?s approach ?would open to searching judicial scrutiny the wisdom of myriad government economic regulations, a task the courts have been loath to undertake pursuant to either the takings or due process clause.?

The San Remo majority?s critique of Brown is almost identical to the unanimous U.S. Supreme Court?s critique of the district court in Lingle. The Lingle Court noted that ??government regulation?by definition?involves the adjustment of rights for the public good?? and that ?Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.?? (Citations omitted.) The Court also indicated that conditions imposed on development permits?such as those at issue in San Remo?get no more heightened scrutiny than other regulations unless, as in the case of easements, they would otherwise be a per se physical taking. The Lingle Court found the ?proceedings below remarkable, to say the least, given that we have long eschewed such heightened scrutiny when addressing substantive due process challenges to government regulation?. The reasons for deference to legislative judgments about the need for, and likely effectiveness of, regulatory actions are by now well established, and we think they are no less applicable here.?

The Lingle Court?s reference to heightened scrutiny of substantive due process claims is a reference to the infamous ?Lochner-era,? which came to an end with the ?switch in time that saved nine? in 1937. Brown has criticized that switch as ?the Revolution of 1937? and ?the triumph of our own Socialist Revolution.? She has indicated she agrees with the decision in Lochner, which struck down a New York statute limiting bakers to a 60-hour work week as a violation of bakers? substantive due process liberty of contract. In Lingle, all nine current Supreme Court justices soundly rejected the Lochner approach, which the Court has ?long eschewed? for reasons that ?are by now well established.? Apparently, not well established enough for Janice Brown.