Pointed Prose Sets Freshman Justice Apart
Justice Janice Rogers Brown, the newest member of the California Supreme Court, rarely speaks during oral arguments. She is generally quiet during the justices’ private deliberations too. She has said she agonizes over her rulings and sometimes doubts herself.
But when Brown sits down to write, something overcomes her. Her fingers fly across the keyboard, and the words that spill forth are scorching and sarcastic, scolding her colleagues and at times expressing contempt at their rulings.
“Passion,” the 49-year-old Brown said in an interview in her spacious, book-lined court chambers. “I love that word.”
Only nine months after being appointed to the state high court in 1996--after a contentious nomination process in which the State Bar of California rated her “unqualified”--the junior justice lectured her colleagues for having “an overactive lawmaking gland.”
“The quixotic desire to do good, be universally fair and make everybody happy is understandable,” the conservative Brown declared in a dissent in an antitrust case. “Indeed, the majority’s zeal is more than a little endearing. There is only one problem with this approach. We are a court.”
Brown’s skill with language and willingness to wield it like a knife have raised her profile and triggered praise from some court analysts.
Even liberal critics now reject the “unqualified” label, which the bar had given her because of a lack of judicial experience.
The rating “certainly didn’t really take her measure accurately,” said Gerald Uelmen, a Santa Clara University law professor who is one of the state’s leading experts on the high court. “I don’t think anyone would seriously contend at this point that she is not qualified for the job.”
Instead, the real question about Brown is whether her highly quotable, but prickly, prose may prevent her from exerting influence on the court.
Widely Deemed Most Conservative Justice
Although she has, at times, joined with more moderate colleagues to side with defendants in death penalty cases, Brown is widely considered the most conservative justice.
Already her writing appears to have isolated her on the court, a staid institution where decorum and civility among the seven justices are prized and arguments are expected to stick to the law and avoid the personal.
Two knowledgeable court sources say Brown’s dissents have irritated other justices, some of whom have, according to the sources, privately complained about her “poison pen” and referred to Brown as “a loose cannon when she has a typewriter in front of her.”
Chief Justice Ronald M. George has even taken the unusual step of pulling Brown aside and asking her to tone down her scathing criticism of majority rulings. In interviews, Brown and George declined to comment on that conversation.
Brown has been undeterred, displaying an independence unusual for a new justice and confounding analysts who predicted that her unqualified rating might make her overly cautious on the court. Brown said she simply ignored the bar’s criticism. She filed more solo dissents last year than any other justice.
Brown’s philosophic conservatism and unconventional legal writing have set her apart on the court. She could become its “best addition” in decades, said Dennis Fischer, a Los Angeles appellate criminal defense lawyer.
On the other hand, cautioned one Court of Appeal justice, Brown’s views and style are so out of sync with the rest of the court that “her vote is not going to influence anyone else.”
In this way Brown could end up resembling U.S. Supreme Court Justice Antonin Scalia, whose “clear world view of constitutional law” is not shared by his colleagues and has tended to “marginalize” him, said professor J. Clark Kelso of the McGeorge School of Law in Sacramento.
Brown, who will ignore precedent if it contradicts her views, also is in danger of becoming marginalized, he said. “She simply disagrees with everyone else on the court on a variety of issues,” Kelso said.
Many of Brown’s dissents break the mold of legal writing. In a drug testing case, she wrote that government employees either should consent to a “limited invasion of their privacy” or decline the drug test and forgo the job.
“Such choices are neither easy nor comfortable,” Brown wrote. “But that is life. Sometimes beauty is fierce; love is tough; and freedom is painful.”
Contrast that with the more traditional style employed by Justice Ming W. Chin in his dissent:
“Balanced against the minimal intrusion on the applicants’ privacy are city’s important and substantial interests in maintaining a drug-free environment for all its new or promoted employees, in minimizing the costs inherent in drug abuse and rehabilitation, and in serving the overriding public interest in safe and efficient operation of city government.”
A single mother when she put herself through Cal State Sacramento, Brown advocates personal responsibility in her writings and speeches. She has complained that the U.S. is becoming a “nation of whiners.”
Although others may see her opinions as striking, Brown said she does not consider her dissents “out of the ordinary.”
Striving to Make Her Opinions Sing
Some justices are known for the brilliance of their legal analysis, others are most admired for their eloquence. Brown strives to make her opinions sing, composing lines in the shower, in bed at night and then rewriting and rewriting her rulings. She quotes everyone from Plato to James Madison to Lewis Carroll.
Conservative activists are fond of citing Brown in their attacks on the court. In a year when four justices, including Brown, will appear on the ballot, the critiques can sting.
A recent Court Watch bulletin from the staunchly conservative California Political Review quoted Brown’s dissent against a court ruling that permitted private parties to sue stores for selling cigarettes to minors. Brown had argued that “the creation of a standardless, limitless attorney fees machine” is not the way to punish stores for selling tobacco to young teenagers.
One of Brown’s dissents is even being used as a weapon against Chief Justice George and Chin, who defied threats from antiabortion activists and voted with the majority to overturn a state law requiring parental consent for teenagers’ abortions. George and Chin have had to assemble campaigns to ward off a recall effort aimed for the November ballot.
Brown, writing about George’s ruling in that case, mocked a particular “sentence whose length is exceeded only by its circuity.” She called the court’s decision to reject the law “indefensible,” the result of a legal approach that allows courts “to topple every cultural icon, to dismiss all society values and to become final arbiters of traditional morality.”
“This case is an excellent example of the folly of courts in the role of philosopher kings,” she wrote.
Brown says she was unaware that her dissents were being cited in criticism of the George court. Because her work is public record, she said, “I can’t have a problem with them quoting my words.”
But she declined to say whether she hoped Chin and George would be retained. “I don’t think my opinion is pertinent,” she said with a sigh and a surprised smile.
In an interview and in a recent speech, Brown insisted that the self-confident tone of her writings belies her feelings about the job. In the speech, she confessed to having “moments, lots of them, of terror and despair” on the court.
But her inner torment over legal cases is largely unnoticed by friends and colleagues, who equate the strong, sometimes berating, language in her writings with a formidable confidence.
Justice Kathryn Mickle Werdegar once fired back at Brown in a court case, describing her dissent as “hyperbolic rhetoric.” Werdegar said in a recent interview that Brown makes her decisions “without looking over her shoulder.”
“‘She does not shy away from a point of view, even when it is a difficult point of view” legally, Werdegar said. “She has an independence of mind and a strong intellect.”
Brown said she is startled by the perception that she is strongly confident. “I would not describe myself as having incredible confidence,” she said. “I think these [court] issues are difficult. I always struggle with them.”
Whereas her colleagues often engage lawyers in spirited debates during the court’s hearings, Brown is usually mute, reserving her views for her typewriter.
“She is not a performer,” said her close friend, Sacramento Court of Appeal Justice Vance Raye, former legal affairs secretary to Gov. George Deukmejian. “She plays it pretty close to the vest, and that is the way she is generally.”
Warm and thoughtful in one-on-one meetings, “she is not a group person,” said Steve Merksamer, at whose Sacramento law firm Brown worked as an associate.
Geography also has separated Brown from the San Francisco-based court. She commutes to San Francisco three days a week from her home in a luxurious, gated community about 30 miles south of Sacramento.
She works the other two days in a court office in Sacramento. “I am a nester,” she said.
Brown is the first African American woman on the court. On the wall of her chambers hangs a framed original signature of Frederick Douglass, a former slave who became an influential reformer, orator and writer.
In Her Youth, a Political Liberal
The daughter of an Alabama sharecropper who in later years turned to a military career, Brown spent her childhood in the segregated South. Her family was defiant, refusing to go to restaurants or movie theaters with separate entrances and seating for blacks except when there was no other choice.
Her father eventually joined the Air Force, and Brown and her younger sister, now a dental hygienist, moved around the country to various Air Force bases before settling in Sacramento. Brown’s mother, a nurse, always worked.
Brown married young, and when the union didn’t work, she had full responsibility for her son, Nathan. She traded child care with other mothers and worked at the telephone company to put herself through college.
Later, in law school at UCLA, she often moved around campus with her son in tow. She eventually married Alan Brown, an administrator in the state Department of Corrections. He adopted her son, who is now in the Air Force. Alan Brown died of cancer several years ago, and Brown is now married to Dewey Parker, a jazz musician.
Brown was politically liberal in her youth. “There are those people who can tell you about the Janice Rogers Brown [in college] who had the biggest ‘fro there was, who was very political to the left,” said Marguerite Downing, president of the California Assn. of Black Lawyers, which has honored Brown. “There are those who think that person still beats somewhere within Justice Brown.”
But Brown said she “never could completely subscribe to the [liberal] party line. . . . Even when I was in college, I took courses in conservative traditions.”
Although she has felt the pangs of racial discrimination, she does not think in racial terms, according to UC Regent Ward Connerly.
“Janice, I think, fits into that category of people who say, ‘The fact that I am black has nothing to do with who I am, what I think,’ ” he said.
Brown said this description is accurate “on one level.”
“I think it is correct to look at people as individuals,” she said.
But “I don’t in any sense ignore or minimize the fact that I am a black woman and that has formed my life experience. I know who I am.”
Nor does she worry about marginalizing herself on the court. When professor Uelmen introduced her recently at a legal event and compared her to former California Supreme Court Justice Jesse Carter, who filed 493 dissents from 1942 to 1959, Brown smiled graciously.
“I wrote down the number,” the freshman justice quipped, “because I always like to have a goal.”
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