The Leadership Conference on Civil and Human Rights

Janice Rogers Brown Nomination Fact Sheet

October 24, 2003

A review of California Supreme Court Justice Janice Rogers Brown's record to date reveals a troubling pattern of persistent and disturbing hostility toward affirmative action, civil rights, the rights of individuals with disabilities, workers' rights, and fairness in the criminal justice system. Justice Brown has often been alone in her dissents from opinions of the California Supreme Court, illustrating that her legal interpretations are far outside the judicial mainstream. In her opinions, Justice Brown has also shown an inability to dispassionately review cases; instead, her opinions are based on extremist ideology that ignores judicial precedent, including that set by the U.S. Supreme Court.

Justice Brown's extremist record includes:

• Undermining civil rights remedies. In 1999's Aguilar v. Avis Rent A Car Systems, Inc., a California trial court found that the defendant employer had violated the California Fair Housing and Employment Act by creating a hostile work environment through the use of racial slurs directed at Latino employees. The California Supreme Court upheld the lower court's remedy that prohibited the use of racial slurs. In her dissent, Brown argued that the First Amendment protects the use of such slurs in the workplace, even when they rise to the level of illegal race discrimination. This conclusion by Justice Brown virtually ignored several Supreme Court precedents.
• Hostility toward affirmative action. Brown's majority opinion in Hi-Voltage Wire Works v. City of San Jose has made it extremely difficult for California to conduct any meaningful affirmative action programs. While some of the result in this case may have been dictated by Proposition 209, the state's anti-affirmative action ballot initiative, Brown's opinion appeared to go much further than necessary by prohibiting cities from requiring their contractors to engage in outreach to subcontractor businesses owned by minorities and women. Brown's opinion stated that affirmative action is at odds with federal law, despite consistent Supreme Court rulings finding that, under the right circumstances, affirmative action is permissible under Title VII of the Civil Rights Act of 1964 and the Constitution.
• Antagonism toward the rights of workers. In Loder v. City of Glendale, a case addressing the constitutionality of a drug and alcohol testing program for employees of the City of Glendale, Brown, in dissent, explicitly rejected binding Supreme Court precedent that called for the use of a balancing test to weigh the interest of the government against those of its employees in assessing whether these types of tests were constitutionally permissible. Despite the clear Supreme Court precedent, Brown would have imposed a bright line rule allowing drug tests for all employees. This opinion raises very serious concerns about Brown's commitment to upholding settled law in both the workers' rights context and many other areas of civil rights and liberties.
• Undermining the enforcement of anti-discrimination laws. In a 2002 housing discrimination case, Konig v. Fair Employment and Housing Commission, Brown's lone dissent argued that the state's Department of Fair Employment and Housing Commission, unlike the courts, did not have the authority to award damages for emotional distress. This rule, if adopted by the court, would have seriously limited the redress options available to victims of discrimination. In Peatros v. Bank of America, Brown argued in dissent that the National Banking Act of 1864 pre-empted California's fair employment law, thus preventing a bank employee from being able to file a lawsuit for race and age discrimination in state court. Justice Brown made this argument despite the fact that other more recent federal laws, such as the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, would clearly supercede the 135-year-old banking law on this question.
• Undermining the rights of the accused. In People v. Mar, the California Supreme Court overturned the conviction of a defendant who was made to wear a stun belt during his testimony at trial. The belt made the defendant uncomfortable and nervous and may have affected how the jury viewed his testimony. In her dissent arguing to uphold the requirement that the defendant wear the belt, Brown berated her colleagues in a brazenly sarcastic and highly critical way, belittling the court's research into stun belts, accusing her colleagues of "rushing to judgment after conducting an embarrassing Google.com search," and implying that a high school student could have done a better job than the chief justice in preparing the majority ruling. Also, Brown's dissent in People v. Ray would have allowed a warrantless search of a person's home as part of law enforcement's "community care taking functions," – an exception to the Fourth Amendment's prohibition against warrantless searches not recognized by the Supreme Court.

The U.S. Court of Appeals for the D.C. Circuit has a critical role in our federal judicial system. The D.C. Circuit is widely regarded as the second most important court in the United States, after the U.S. Supreme Court. Because of the importance of this court, it is critical that Janice Rogers Brown's nomination be carefully scrutinized.