anice Brown has become a favorite of conservatives since joining the high court two years ago. The first African American woman on the California Supreme Court, she has delighted them with her two-fisted rhetorical assaults on the sacred cows of liberalism.
Here's a line from an otherwise obscure antitrust case: "The quixotic desire to do good, be universally fair and make everybody happy is understandable. Indeed, the majority's zeal is more than a little endearing. There is only one problem with this approach. We are a court."
When the court tossed out a Rose Bird-era ruling requiring jury instructions on lesser-related offenses, Brown penned a separate concurrence in which she chastised her colleagues for wasting too much time explaining their reasons for dumping the precedent. "Its obsequies should be brief: good riddance," Brown wrote in People v. Birks, 19 Cal.4th 108.
And here's Brown on the tough choices faced by government employees who must submit to on-the-job drug testing: "That is life," she wrote in Loder v. City of Glendale, 14 Cal.4th 846. "Sometimes beauty is fierce; love is tough; and freedom is painful."
But Brown's saber-rattling brand of conservatism presents a paradox. After all, the hallmark of a conservative judicial philosophy is supposed to be restraint, and no one can accuse Brown of that.
A great example is her dissent in Stop Youth Addiction v. Lucky Stores, 17 Cal.4th 553, a case she describes as a "poster child" for abusive litigation, but one which her six colleagues nonetheless determined could go forward under existing law. Brown rips the court's long-standing expansive interpretation of the state's unfair competition law even as she concludes with the seemingly contradictory position that it's up to the craven Legislature to provide the fix: "We simply cannot put this genie back into the old bottle. The Legislature at least has the wherewithal to make a new bottle. Perhaps it will also have the political will."
Brown peppers her colorful opinions with literary references that range from Plato's Republic to P.J. O'Rourke's Parliament of Whores. Sneering at what she viewed as yet another overly creative application of the state's unfair competition law by the majority, Brown quoted 1960s songwriter Billy Preston: "Nothing from nothing leaves nothing."
A self-described liberal during her college years, Brown now espouses the conservative ideals of limited government and personal responsibility. "My general idea of government -- or better government, or better societies -- would be stronger communities, smaller governments," she told the Recorder in a February 1996 interview.
Not that government is all bad. Having experienced desegregation firsthand as an African-American child in rural Alabama, she considers Brown v. Board of Education a great ruling, even while acknowledging it represents the kind of judicial activism she disfavors. "How could anybody of my background not think that Brown was an extremely good idea whose time had come?" she said. "Let's face it."
Brown was born in Luverne, Ala., which she describes as a "very small town" 50 miles south of Montgomery. "I know it seems to be sort of a cliche," she says, "but it's nevertheless true -- I'm a sharecropper's daughter." She remembers spending a few summers as a pre-teen helping her grandfather in the cotton fields. She also remembers the pain of the Jim Crow laws -- of "people who have to deal with a system that is fundamentally unfair, that dehumanizes and marginalizes them."
After graduating from the UCLA School of Law, Brown did an eight-year stint at the attorney general's office, where she worked in both the criminal and civil divisions. She then joined Gov. Pete Wilson's team as his legal counsel. Among her duties was advising Wilson on Robert Alton Harris' clemency bid in 1992, an experience she wrote about in a UCLA law review article entitled "The Quality of Mercy," 40 UCLA L.Rev. 327. Wilson appointed Brown directly to the court of appeal, where she worked only 16 months before getting the call to the high court.
Although Brown has produced a healthy number of majority rulings, she frequently stands alone in dissent. Some close observers of the court think her iconoclastic views -- and the vehemence with which she states them -- will sap her ability to influence the development of the law.
Last year, in a speech to a Federalist Society audience, she bemoaned the rise of activist "judge-militants" in what appeared to be a veiled attack on her own colleagues. And When Brown was interviewed for a front-page profile in the Los Angeles Times this summer, she was given a golden opportunity to voice support for colleagues Ronald George and Ming Chin. But she declined to voice an opinion as to whether the two should be retained. "I don't think my opinion is pertinent," she told the Times. (She has since agreed to endorse Chin; George has not sought endorsements from his colleagues).
