The Supreme Court's Bad Precedent

Here is an article in Slate by Dahlia Lithwick about how the "tone" of judicial opinions has shifted, perhaps due in part to the tone of discussions held at the highest court. Specifically in this article she writes about how a very conservative Appeals Court judge wrote openly of her judicial ideology in a concurring opinion in a recent case. Not simply "here's the case, here's the law, here's the precedent, and so here's how I reached my decision." But, "The court has been progressive and wrong for the last 80 years when it comes to democracy vs. free enterprise."

Judge Janice Rogers Brown wrote in Hettinga v. United States:

[T]he Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.

As Lithwick notes, it is not surprising that Judge Brown holds these views. She is known to be an arch conservative and was embroiled in a very contentious Senate confirmation fight when Bush 43 nominated her for the Court of Appeals. What IS surprising is that the judge would insert this language into a judicial opinion rather than a law review article.

Judge Brown is acknowledged as being on any Republican's short list for the high court, and there will be vacancies in the very near future. Is the judge "auditioning" for a promotion?

Lithwick also suggests that if a progressive ever inserted a progressive ideology in a written opinion, it would be the death knell of his or her career. Yet, somehow, a conservative can get away with it.