By Andrew Cohen
Judge Janice Rogers Brown has long defied expectations, and her current role as Berkeley Law’s Jurist-in-Residence is no exception.
A sharecropper’s daughter who grew up in rural Alabama, she went to college in California during the turbulent 1960s and briefly veered left politically before returning to a conservative viewpoint. Yet during 23 years as a judge, including 9 at the California Supreme Court and 12 at the U.S. Court of Appeals for the District of Columbia Circuit before retiring in 2017, her rulings were not easily pigeonholed.
While Brown wrote the majority opinion overturning a program of racial set-asides adopted by San Jose and dissented from a decision striking down a parental consent law for abortions, she also asserted that the California Constitution requires drug offenders to receive treatment instead of jail time and upheld the state’s right to ban semi-automatic firearms.
Spending the year at Berkeley Law through a grant from the Hugh and Hazel Darling Foundation, Brown is currently co-teaching a workshop class on natural law and constitutional interpretation with Professor John Yoo and lecturer Steven Hayward. She is also conducting research, writing about issues in the field, and mentoring students.
Brown earned her undergraduate degree at Sacramento State, graduated from UCLA School of Law, and spent most of the first two decades of her career working for California government agencies. In 2004, she received an LL.M. degree from the University of Virginia School of Law.
Brown recently discussed her time at Berkeley Law and the judiciary’s current challenges.
What sparked your interest in becoming a jurist-in-residence here?
My appointment was pure serendipity. Professor’s Yoo’s path and mine had crossed occasionally in the past. When we both participated in a fellowship program during the summer, he suggested I might find Berkeley Law congenial. I did not believe him, but he invited me to visit and everyone, including the dean, was very cordial. While I had no plans to teach when I left the court, I did have some research interests and having access to Berkeley’s vast library resources was a definite incentive. Besides, I’m enough of a contrarian to think that a class focusing on natural law would be something completely different for Berkeley.
Interest in natural law has been revived as the effective antidote to the “new science” of morality—a discourse gaining increasing prominence in the academy. The workshop format allows us to invite scholars from across the country to explore the dimensions of our dilemma. Since this discussion relates directly to my interest in the philosophical framework of American constitutionalism, the opportunity was simply irresistible.
What have been the most surprising and rewarding aspects of the class so far?
I have been most surprised by the narrowness of what constitutes constitutional law—a teaching method that rarely includes the Constitution. Of course, I was taught the same way. Perhaps that is why it takes three years to learn constitutional law through the casebook method and thirty years to get over it. The students are always what make teaching rewarding and Berkeley is no exception.
What is the focus of your ongoing research in this area, and why do you think it’s an important issue?
My particular area of research focuses on the sustainability of the regime. When I first read Abraham Lincoln’s cri du coeur, calling America’s constitution of liberty “the last, best hope of earth,” I thought he was neither posturing nor exaggerating. He was stating a fact. The fascinating question is why that is so. And if the telos of the founding documents made it so, can the liberty the framers contemplated survive when no on believes in it anymore? For those who love the country and its Constitution, nothing could be more important.
What are the biggest misconceptions people have about the bench, and the biggest challenges facing judges today?
People see judges as exercising enormous power—and they do. The problem is that people want them to act as philosopher kings. The old idea of judicial greatness applauded discipline, intellectual rigor, modesty, the courage to do the right thing even when doing the expedient thing would garner praise. The new idea of judicial greatness is that a judge is a social justice warrior with superpowers. A former colleague, Judge Larry Silberman, coined the phrase “the Greenhouse effect” as a way of describing what ails many judges. Linda Greenhouse was the longtime court reporter for The New York Times. Silberman’s wry observation poked fun at the desire of far too many judges to win Ms. Greenhouse’s approbation.
Contrasting that attitude with Judge Lerned Hand’s counsel that a judge’s most important trait is humility, the challenge for modern judges becomes apparent. Hand mused that the words “I could be wrong” should be carved into the pediment of every courthouse. If he was right—and his view has much to recommend it—arrogance may be the equivalent of judicial kryptonite.
How have you spent your time since retiring from the D.C. Circuit, and what do you miss most about being on the court?
I have traveled. When I was in college, semester abroad programs were rare, and certainly not obligatory. I worked to pay tuition and expenses so I had no time and alas no money to visit foreign lands. A friend of mine who owns a travel agency says if you want to see the world, you have to do so while the pins (he means the legs) are still good. That sounds like good advice so I have been diligently working on my bucket list. What I’ve missed most about the court is the daily interaction with my clerks. They were a tonic and an infusion of energy, enthusiasm, and laughter.