Voices of Freedom - Interview with Judge Janice Rogers Brown

Episode Date: March 21, 2024

An Interview with Judge Janice Rogers Brown The U.S. Constitution has held our Republic together through wars, the Great Depression and civil unrest. Yet for all that it has helped us endure, the Constitution faces great challenges.  Will Americans cherish and defend it, or bend to efforts to weaken and undermine it?  Our guest on this episode of Voice of Freedom is Judge Janice Rogers Brown. She shares her thoughts on whether citizens have the “discipline and toughness” required to safeguard the Constitution and addresses other significant Constitutional matters. Brown was confirmed to the U.S. Court of Appeals for the District of Columbia in 2005, where she served until 2017. Before that, she was an associate judge of the California Supreme Court. Topics Discussed: What drew Judge Brown to a career in law and the principles of the Constitution Why she believes the Constitution’s teachings are tough The significance of originalism and how to defend it The impact of partisanship on the justice system Her thoughts on whether racial set asides are constitutional How independent thinking and an inquisitive nature shaped her judicial philosophy She has received numerous awards and honors throughout her distinguished career, including a 2018 Bradley Prize. 

Hello and welcome to Voices of Freedom, a Bradley Foundation podcast. I'm Rick Graber, President and CEO of the Bradley Foundation. On the podcast, we'll explore issues that affect our freedoms with a focus on free enterprise, free speech, and educational freedom. So let's get started. The Constitution is not only the supreme law of the land, but also a symbol of democracy and freedom. Its principles have united citizens of all backgrounds, sustained the United States through domestic and foreign wars, and withstood the test of time, no matter which way the political or cultural winds happen to be blowing. But the Constitution's endurance requires Americans to understand it, value it, defend it.

If you understand that better than our guest on this episode of Voices of Freedom, Judge Janice Rogers Brown is one of the most eloquent advocates of the Constitution ever to serve on the bench. High praise, but very true. She was confirmed to the U.S. Court of Appeals for the District of Columbia in 2005, where she served until 2017. She also served as an associate judge of the California Supreme Court. Judge Brown has received numerous awards and honors throughout her distinguished career, including, of course, the 2018 Bradley Prize. Welcome, Judge. It is wonderful to have you. Thank you for inviting me to join you in this conversation. I really look forward to it.

And let's start sort of at the beginning, Judge. You were born in the South, I know, but then you moved to California as a teenager, and it was there that you received your undergraduate and law degrees. What was it that drew you to a career in the law? Well, I think it's interesting that you start with being born in the South, because I think that probably being born there at the time and place that I was, had something to do with my choice of vocation. I actually am ancient. And so I was around when there was still the jury segregation, you know,

and I experienced that. And it's very hard, I think, for anyone who is a descendant of slaves to not think very hard about law and questions of justice and whether the positive law is entirely adequate. So those were things that I started thinking about when I was fairly young. And I think that that's probably what led me to think that law might be something I'd like to pursue. Was being a judge something that you had thought about early on? I know when I went to law school, being a judge was just not something that I had contemplated. People have different paths. You know, it's really interesting. And this will make me sound completely naive and pitiful.

But I actually was reading when I was fairly young, judicial decisions. And I remember thinking, because there were no judges in my family. I had no experience of that at all. And I would read these decisions

and it would say, you know, Wilson J. Or, you know, Brown J. Or, you know, Brown J. Yes. And I was like, the first I looked at that and I thought, well, why are all of them named John or James or, you know, something like that. Well, I finally figured out that that was the title.

But, you know, I thought figured out that that was the title, you know. But, you know, I thought about being an attorney, and I actually thought when I was fairly young reading these decisions, wouldn't it be something, you know, to be able to do that, right, to actually interpret the law. And so I kind of thought about that. And then when I got older and people said to me, you know, I thought, well, I'll just go to law school and be, you know, really great lawyer. And in the fullness of time, I'll become a judge. And then people just abused me on that notion and said, no, no, no. That's not how it works. You have to know a governor.

And so my response to that was, okay, plan B. You know? Oh, really interesting. Judge, your philosophy, I think it's very fair to say, leans towards limited government

and economic freedom and fidelity to the Constitution. But as I understand it, you didn't start out that way. Walk us through how your thinking evolved over time and how you came to truly believe in the core principles that the framers worked so hard to enshrine in the Constitution? Well, I thought about that. And I guess I would say that, you know, it probably seems that I didn't start out that way. But thinking about it more, I suspect that I did start out that way. I just didn't know it. So I was heading off to college in 1968. And, you know, 1968 is one of those years where many interesting things were happening. The world was changing, you know, it was sort of tilting on its axis. And so it's a year like 1968, 1989. You know, there's certain years that just were very precious, right?

But there was a lot of student unrest at that time. We were all sort of feeling like we were on the vanguard of, you know, something new and amazing. And so we thought very well of ourselves, I think. So all of us at that time that I was going to school, everybody had Chairman Mao's little red book. We'd all read Franz Fanon, right? The Wretched of the Earth. And so we kind of had these ideas about how the world worked and that we were very smart

and we figured out things that nobody else had ever figured out. And so I think we, you know, we were carried along. It was very seductive, that idea that we were going to make history. And so we thought our parents simply couldn't have understood anything, right? They just didn't know. And so I was right in the middle of that. But I was also a country girl and I had grown up in a very strong faith tradition. And and I had learned through that this attitude that you're always supposed to know what you think and why you think it and be able to back it up. Right. It was back in the day when you didn't go online to look for your courses.

You had a big fat catalog. Right. And I was flipping through this catalog and I came across something that said, I don't know, a history of conservative thought. I thought, you know, that's kind of interesting. That might be something that I haven't ever looked at before. And so I took this class. I started reading all kinds of different people, but certainly, you know, Burke, Bastia, Reed. And I thought, well, that's interesting, right? I understand these guys.

They wrote this two or three hundred years ago. And I get them, right? I understand them. So that became for me just an opening, I guess. It didn't mean that I got all the way there or that I understood everything, but I just found that I had really struggled with modern philosophers. I found materialism incoherent. And I just, I would read these tomes, and I felt like I was hacking my way through the jungle with a dull machete, you know, it was such hard work. And then I started, you know, reading these people who had written these things, most of them long ago. And it was easy. You know, theory of moral sentiments, you know, I got it.

That, I guess, started me down the path of wanting to do more of that, think more about that. And then it was 1976. I was in Africa. And so I know exactly the moment that I fell in love with my country. I had gone to a program in Ghana. And while I was there, in a way, I went because it was the bicentennial. And I was going to just go back to my homeland. And I went off to Africa and the people there were very nice. They were delightful. They loved us.

They treated us very well. They referred to us as American expatriates. And they often invited us to think about coming back home to Africa. But I was there and the raid on Entebbe happened while I was in Ghana. And I remember searching for my passport and putting it under my pillow. I'm saying, I want to be sure that I can go home because I'm not African. I'm American. You know, and at that point, I started to really study the founding, the founding principle. Really interested.

What is it, you know, that they were getting at? Because what that showed me, what was going on in that country where people could just be held, was like, that was what arbitrary rule was like, right? And that was the thing that I had no sense that that would ever happen to me in America. Interesting. Interesting. Judge, in your Bradley Prize acceptance speech that I had the honor of listening to a few years ago, you said that for the Constitution to endure, citizens must possess discipline and toughness because the Constitution's teachings are tough. What do you mean by that? I think I still think that that is exactly right. And what I mean by that is that for self-government, it takes a certain quality, I guess.

Founders felt that you had to design government to fit the nature of the creature to be governed, right? And so you had a creature of the logos capable of making decisions about right and wrong and, you know, having a real sense of how to live their lives, right? So the natural law was fitted to the person, right? The way human beings are designed. So that made sense to me. But it also means that you have to have people who are not only capable of self-restraint, but self-reliant and willing to accept responsibility for their own destiny, right? People who have confidence in their own agency. And that is the only thing that would make it work.

Abraham Lincoln says, if you want self-government to work, you can't be too self-righteous. Isn't that interesting? You have to have some flexibility, some resilience, some willingness not to be either, you know, a spiteful winner or a sore loser. And I think this is not easy for human beings. We're, you know, we're selfish, we're self-indulgent. We like to have things as easy as possible. So I think this idea of restraint is actually more difficult than it seems.

Fascinating. Do you think we citizens are disciplined and tough enough these days, or do we have a little work to do? Well, I think we maybe have some work to do. I'd like to think that we're still Americans and we're still tough enough. things that have been going on in recent years with the safe rooms and concern about microaggressions and trigger warnings and all of these things. willing, you know, to, to take risks and mix it up in the way that you have to do. If you're going to govern yourself, you need to figure out what's true, right? And that means you got to talk about it and you got to, uh, be willing to listen and you, and hear things that maybe you don't like. So there's lots of smart, thoughtful people who have said, we just don't have the moral stamina anymore.

We are just, you know, we've turned into wimps and we can't handle it. And that may be right. I kind of agree with, there's a French philosopher named Alain Dinkelkraut. And he says the educational project of the last hundred years has been the undoing of thought. He might be right about that. And if so, then maybe we are really not up to self-government. But I live in a very rural part of the country. People here are actually pretty self-reliant, pretty tough. And I saw a t-shirt the other day that had a, you know, sort of a graphic of the U.S. Constitution.

It said, it doesn't need to be rewritten. It needs to be re-read. So I like that. Very good. I like that attitude. You're a staunch defender of originalism. And what that means is that the Constitution should be interpreted according to the framers' intent, rather than a malleable'd have to have the seminar because there's a lot to it.

And there are now so many flavors of originalism, you know, it's, uh, it's almost, uh, mind boggling. Um,

but I think, um, to, to tell people why it's so important, we need to go back a little ways and understand that the court, particularly the Supreme Court in this country, is very unusual.

It has more power than almost any court. One of the biggest critiques of the Constitution by the anti-federalists was, you are giving these unelected people far, far too much power. And so Brutus, who was one of the, I think, most authoritative of the critics of the judiciary, basically said when you have a group of people who don't have to be accountable to anyone, who are given the task of interpreting the Constitution, not just its words, but its spirit, he says, right?

I mean, that goes far beyond just looking at the language. And so he said, when people are in that position, and they're accountable to no one, and no one can tell them what to do, he said, they're going to feel themselves independent of everything even heaven itself and so I think one of the questions that we struggle with continually is was Brutus right he lost the argument but there are a lot of people who feel that we have been the victims of what you might call an imperial judiciary. That, in fact, what he projected is exactly what happened, but it didn't happen for a long time. For about 150 years, it seemed like, you know,

everything was going to work just fine. Well, I take that back. I think you see that even in the pre-Civil War and Civil War periods on certain issues. But, you know, except for perhaps racial issues, the court hewed to a pretty good line for a long time. But then in the 60s, you begin to, well, again, you could go back to the 30s too, but clearly in the 60s you see this idea that the court begins to see itself in kind of a different light. And begins to say, well, there's these wonderful generalities of the Constitution that we have to infuse with meaning, right? They don't, those words don't really mean anything until we decide what it is that they might mean.

And so that, we came into the era of what came to be known as the living constitutionalists, right? People who said we just have to keep the Constitution in tune with the times, right? We can't be held back by the dead hand of the past. And so living constitutionalists sort of looked at the Constitution like a, you know, a chain novel. Just that we come along, we all add to it. And that got so bad. They were doing so many things that didn't appear to be in the Constitution

or taking liberties with the language. So they were putting things in that seemed to be things they had invented. They looked more like legislative codes than judicial decisions. So there came a point at which that was so disturbing that people began to think we need to do something about this. And I will have to say that even though the court probably invented living constitutionalism, academics were not reluctant to find ways to support what they were doing. So in the 80s, Ed Meese, who was Reagan's attorney general, called a halt to this in a famous speech where he said, you can't just make it up. You have to be tethered to the words of the Constitution.

That's why we have a written Constitution. And so this began the focus on what came to be called originalism as a method of constitutional interpretation. The first problem that people ran into was they said, well, you can't possibly find out the framers' intent. So the best that you can do is, out the framers intent. So the best that you can do is they said meaning, right? So what, what was, what were the meaning of those words in that historical context? Can we at least figure that out? And I think that that idea of, you know,

tethering judicial interpretation to actual words and saying the words have to have meaning because if the words have no meaning, there's nothing for the judge to do. That's why it's really important. And we are seeing, I think, a court now that is trying to hew more closely to that sort of idea, they've paid a price for it, too. You know, they've spent the last couple of years, you know, with a lot of extra security and with their lives somewhat constrained because people have taken exception to the idea that judges ought to focus on what the Constitution says or doesn't say. Was this a debate that you had with your debate in the sense of an argument in favor of living constitutionalism. What happened was that the idea of originalism sort of got co-opted.

That is to say, when Elena Kagan at her hearing says, we're all originalism now. That's kind of exactly what happened. But you now see all these different flavors of originalism, some of which look an awful lot like living constitutionalism. So, you know, human beings are very inventive, and the judge is not the least of them. Well, I mean, we're talking about the U.S. Supreme Court. Let's talk about a recent case. One of the biggest of the last term was the decision to end affirmative action in higher education. I know when you were on the California Supreme Court, you ruled to overturn a program of racial set-asides that had been adopted by the city of San Jose. In your view, why are programs like that unconstitutional?

Oh, yeah, it's interesting that California anticipated students for a fair admission by about 20 years, because that, I think, was like 1996. The California case was the result of Prop 209, which basically said any use of that affirmative action was prohibited. And so it wasn't focusing only on the educational system, the universities and that sort of thing. It said, period. In public contracting and all of that, you could not do that. But the quick answer to why I think those are unconstitutional, I think, was given to us by John Marshall Harlan in his dissent in Plessy v. Frankston, where he said, you know, our Constitution is colorblind.

Now, I know that these days people sneer at that, but I still think that that was the right answer. Great. One more case. And then, again, during the last term, the Supreme Court pretty consistently ruled in favor of religious liberty. A notable case was 303 Creative, and in that case, the court held that the First Amendment protects the right of artists

to voice only those messages that they wish to express. Talk a little bit about the importance of religious liberty, particularly as it relates to the values of our founding, of our founders. I know this is something you've talked about a bit. I have. And it's interesting. I'm sure I don't have it in front of me. But there is, I think, an understanding that it's religious freedom from which all these, many of the other

protections of the Bill of Rights actually comes. The First Amendment says, you know, no establishment of religion and also, you know, protection of speech and expression. It's interesting, because when you look back at the history of this, Madison makes a point of saying that essentially what precedes civil society is man's duty to God, and that takes precedent over all these other things. And so it is actually that idea, you know, which is at the core of the notion of freedom that we have, right? Freedom of conscience is the first thing that the founders thought about, that people should not be able to tell you what to think or to coerce particular speech from you just because they think it's a good idea. So in that sense, I think that case is very much in line with the founders' ideas about liberty. It's not perhaps as strong a protection as we once had. I mean, there was a time when any infringement on what would be freedom of conscience or religious expression would have been decided by the court under a standard

that they had, which said they would give extraordinary review to any infringement of that kind. But that has fallen by the wayside. And when, when that case came out, they said we're no longer going to do extraordinary review. Everybody on every side of the political spectrum said, that's a terrible idea. We need to put back, you know, that any kind of infringement like that will have to survive this heightened standard of review. But the court, and basically, I don't think, I think there was very little dissent.

The Congress was pretty well in agreement on that. It passed easily. But now, you know, sanctions and complaints and basically told that people would not hold conventions or events in their state because they tried to protect religious liberty. So it is a very important and significant issue. And one of the things that's happening is a constant clash between what the Constitutional originally set out to protect, right, which were these negative rights, this right to be let alone. But once you see rights as a sword rather than a shield.

And that's what's happening when you change into human rights, which the government is simply decreeing, not rights which are yours by virtue of just being a human being. So anyway, that's probably a discussion

for another day, but that's what I think. That's really interesting. You know, it's a good case. It allows people to exhale. You know, people who have deep religious convictions, it's probably not as broad

a protection as the framers would have anticipated. Yes. Judge, we're nearing the end of our time. So one last question. You retired from the bench a few years ago. I know you've been teaching law.

I see you all over the country at various conferences and your speeches that you're making. I also understand that you're a fly fishing enthusiast. What's next for Judge Brown? More teaching, more fishing, speeches? What's on tap? A little teaching. Hopefully a lot of fishing.

And, you know, I will still try, even though I am trying to get more retired, but I will still, I hope, have opportunities to do speaking and writing because I say, not entirely facetiously, that my mission in retirement was saving the United States. I'm more modest than some of my colleagues who want to save Western civilization. I'll settle for just the United States and its founding principles. That's great. That's great. Judge Janice Rogers-Brown, thank you so much for your time today. Thank you for your service to our country. Like all of your fellow Bradley Prize winners, you truly have made a difference, and we're all appreciative. Thanks so much. Thank you. And as always, thanks to all of you for joining us on this episode of Voices of Freedom.

Join us on Apple Podcasts, Spotify, or wherever you get your podcasts for our next conversation on issues impacting our freedom and America's foundational principles. And make sure to subscribe so you don't miss an episode. I'm Rick Graber, and this is a Bradley Foundation podcast.