Dicta or Diatribe? Appellate Judge Writes Opinion Denouncing Limits on “Cowboy Capitalism”

D.C. Circuit Judge Janice Rogers Brown has long been controversial since her nomination was opposed by many for what were viewed as extreme view as a member of the California Supreme Court. She was finally confirmed in a deal in the Senate that many denounced as a surrender by Democrats. Now Brown has used an opinion to denounce “powerful groups” and courts for limiting “Cowboy capitalism” that she says has been “disarmed” in America.

The diatribe came in Hettinga v. United States, where the court rejected Hettingas that contribution requirements applicable to all milk handlers constituted a bill of attainder and violated the Equal Protection and Due Process Clauses. In the opinion below, Brown and conservative colleague David Sentelle wrote to express sympathy with the Hettingas and their “understandable” “sense of ill-usage.” The central point of the concurrence appears to be a desire to express dissatisfaction “with the gap between the rhetoric of free markets and the reality of ubiquitous regulation.” She then added:

“America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.”

The opinion has raised questions of the propriety of such statements in dicta. Opinions are not meant to be opportunities for judges to hold forth on their views of the proper course of political and legal trends. At the time of her nomination, then-Senator Barack Obama took to the floor to join those denouncing Brown:

Justice Brown has shown she is not simply a judge with very strong political views, she is a political activist who happens to be a judge. It is a pretty easy observation to make when you look at her judicial decisions. While some judges tend to favor an activist interpretation of the law and others tend to believe in a restrained interpretation of the law providing great deference to the legislature, Justice Brown tends to favor whatever interpretation leads her to the very same ideological conclusions every single time.

I do not see how this statement falls within any reasonable view of appropriate judicial opinion writing. It is less dicta than diatribe. What do you think?

Here is the opinion: 11-5065-1368692


241 thoughts on “Dicta or Diatribe? Appellate Judge Writes Opinion Denouncing Limits on “Cowboy Capitalism””

  1. skiprob:

    I am a moderate in that I think we need some government. I dont think you can have a free market justice system or a mercenary military. It just would not be good. Think “The Postman”.

    Our country is becoming Balkanized with special interest groups and is ceasing to be America. More like tribal groups vying for special privileges from Washington. Each wanting a piece of a diminishing pie, made smaller by idiotic economic policies which only cater to the poor or to the very rich.

    Liberals seem to think they are smart enough to control the actions of hundreds of millions of people by tweaking tax codes and setting interest rates. I remember talking to one guy who thought he could control commodity prices by use of a computer and some “really” smart guys. He worked for the government. I asked him how he knew what happened to the price of peanut butter when he released warehoused orange juice into the market. He said they have some really good software. Uh huh.

    My question, why does government try and smooth out commodity prices in the first place? That is what speculators do, that and mitigate risk in pricing. The economy is like our solar system, held in balance by principles. I think liberals think they can control the planets too. It is just hubris and ignorance, not a good pairing if you ask me.

    1. Hey Bron, It doesn’t really matter what I believe because I’m in a very small minority on this issue. But what you can count on is that government will not do what is in the best interest of the majority. It can’t, it’s a Power Brokerage Cartel and as we have seen throughout history and even our lives, that power and priviledges goes to the highest bidder. What are you going to do put everyone in jail that is working the system?

      As to military defense, standing Armies are really more of a mercenary group than militias and since they are paid by government that is where there first loyalty lies. Hense, some of the attrocities that have been perpetrated by military personnel around the world. The Police generally aren’t any better, they were the ones that commiting many of the attrocities of the Holocaust. Militia personnel aren’t paid by anyone, they’re volunteers so therefore they are diffinitely not mercinaries.

      You would really be supprised how out nation came togther with almost no governing body and waged war against the British. It was trully a just war vs many of the unjust wars that our nation has entered into since. It is a tough call to determine a just or unjust war, but you know our world, somebody has gone through a the intricate analysis to determine such things.

      Interestingly, I started out as a Democrat. I found the Democratic Party to be hightly Undemocratic in the way it runs the party. Tried, the Republicans and they’re just as bad so I was “an independent” for a while. I kept studying and reading everything I could get my hands on. My stance now I would have never guessed. I’ve looked at it logically for some 35 years now. Government does much more harm than good, especially to the citizens within the lower socio-economic levels, piting the productive against the poltically determined social expenses, hense the huge political divide wtihin our society. No matter how you analyse it, government as it is today, hasn’t worked very well and there doesn’t appear to be a solution as far as making the institution work. What alternative do you have other than the replace it with some free market system? We’ve tried the various degrees of the private/public partnerships (the mixed economy) and they don’t seem to make any real lasting improvements.

      Show me how to make government work and I would be all yours. However, logically it can not happen, at least in a just manner. Government has an unethical economic foundation. Period, and many people in our world have suffered from the system and paid the price in both lives and money for the utilization of the institution of government that eventually always fails the majority of it Citizens.

  2. skiprob:

    if the foundational philosophy is bad then what are you going to do? They/we learn it from grade school on. We are all infected by it in ways we dont even know. Look at Hayek, he went back to Europe to take advantage of their health care when he became old. The Road to Serfdom doesnt mean much if you ask me. More of a do as I say rather than do as I do.

    Republicans are as bad as democrats, they are afraid to say no to spending for political reasons. We have an entire class of people who are dysfunctional due to taxpayer support. I doubt most of them could even hold a job at this point. Tens of millions of them not able to hold even the meanest of jobs.

    1. Agreed. As to Hayek, when societies redistribute wealth at the levels they’ve been doing for decades, and individuals are up against the various obsticles placed by both competition and government interventions/regulations, there is little doubt that a large number of people, including even very smart people, are going to be placed into a subsistance level of lifestyle. No society has ever been able to curtail, except through physical rebellion, the continuous advancement of the ursupation of individual rights by their government over time. It’s a bell curve cycle.

      Republicans are a bad as democrates, perhaps even worse in some ways. The majority of both of them lie like crazy to get elected and then hope like hell that everyone forgets what the promised until the next time they run and lie to us again. It’s almost hilarious if you consider, the number of people that fall for the same BS each election cycle. Can wait to hear what Obama is going to come up with this time. We’ve already had a chance to hear the crap the Romney has put out.

      Just was told that there is a recent study by a group or University Professors that places approx. 150mm people in the U.S. at or near the poverty level. If you’ve seen it I’d like to get a hold of it. Go figure right. With 50mm people on food stamps, what happens when the money eventually runs out. Yet you should see some of the cool cars $100K + driving around Palm Beach. With the passage of the recent NDAA and the Presidential Executive Order signed on March 16, something has to be in the works. When government starts blantantly usurping the Constitution and enacting laws which allows them to overstep their authory and the courts rubber stamp them, something is up.

      Interestingly, I don’t begrudge wealth, matter of fact I’m all for it when earned honestly. However, in our society today, with over 41,000 factories shut down in the last decade, and the war machine ramped up in so-called “peace time” to unprecedented levels, the scum bags are making a lot of the money currently in circulation. Just wait until the inflation panic starts to hit the majority of investors, it’s not goving to be pretty.

      I think I have given some overwelmingly valid reasons and a historical foundation why government, as we know it today, has failed society in my recent article by causing more harm than good. https://groups.google.com/forum/?hl=en&fromgroups#!topic/HarrietRobbins/TdY6cgWMmY4 ////////

      It still needs some work, but I’ve had some pretty good comments so far. After fiquring out democracy or even democratic republics are not feasible, as far as doing what’s in the best interest of the majority and generally are the primary contributors to mass attrocities, it brings you to the intellectual point of what libertarians call anarcho-capitalism, a fancy name for Anarchy; the absence of govenment. The problem is, no government is going to lay down their guns and let that happen and they will come up with every BS reason in the world, why they must keep taxing the people to pay themselves. They of course know what’s best for society and they have enough people vested in the system to keep it going, at least until it economically imploids. I think we are closer to that point then even I want to believe.

      We all are aware of the social problems we are experiencing, yet most are unwilling to change until they are forced to. Approx. 23 countries have had their currencies drastically devaluation over very short periods of time in the last 25 years. I think that the US is on the short list.

  3. skiprob:

    “The three of you, gbk, Gene H. & Bron are so full of **** it’s hilarious.”

    I am a free market, capitalist pig, leave me out of that. Plus I am engineer not a soft science guy. In addition I have great respect for Ayn Rand’s ideas.

    These guys are mostly lawyers and liberals and they will hand you your head on a silver platter so dont take too much offense. It took me a long time to be able to put my thoughts together, some would say I am still trying. Communicating with words on abstract ideas is not what engineers do, we deal with concretes.

    I dont agree with Gene H about much but he is very smart and gbk seems very smart as well. I wouldnt just dismiss them out of hand. You dont have to agree with them but you can learn a good deal by disagreeing with them if you do some thinking. I know I have.

    You really do just throw shit up on the wall and hope it sticks, it isnt going to here unless it is well thought out. Even then they are going to say you suck, you are stupid, you dont know what you are talking about, etc.

    So either grow a thick skin if you have libertarian ideas and improve your game or just leave. The place is very interesting though and you ought to get as many of your libertarian friends as possible posting here. It has wide readership so the more the merrier.

    These guys know proper grammatical construction and spelling for the most part.

  4. skiprob,

    You mean like this great idea of yours from your essay:

    “Just think of a Supreme Court decision being made by 2,500 to 3,000 individuals all participating together from local levels . . .”

    Even you acknowledge the problem with this when you say:

    “Two keys to any potential success are voluntarily participation and maximizing the number of qualified participants in the decision making process.”

    Obviously you consider yourself qualified as you wrote the essay and put forward the idea. I can’t think of anything scarier than you, and a few thousand other people like your Jesus choir in the comment section after your essay, making decisions that would control the process of justice.

    Granted, the current government is broken due to graft, corruption, endless war, and corporate collusion, but your proffered solution is ludicrous.

    This thread wasn’t meant to change the world, it was a discussion of thought processes — something you are obviously incapable of making use of.

    1. Bron, your right, that’s what liberals do. GBK – Actually No. There are many people better qualified than me at providing quality opinions on Consitutional Issues. It can’t be that hard thou, lawyers think they can do it. If you’ve read some of the Appellet and Supreme Court opinions over the years, neither are they right or necessarilly well written as they try to distort the founders Constitutional entent. I don’t see any other way to improve the system and I been looking at it for 40 years. We obviously need to do something to get society out of the gutter but first we have to acknowledge it’s in the gutter and what caused it to get there. I just read a study that estimates 150 MM people live at or near the poverty level in the U.S. We had 4 or 5 years of $trillion deficits and that is starting to come back and haunt us. Just look at food prices since the beginning of the year. Bron, I have thick enough skin. It’s just hard for me to deal with people who try to subvert others using the various tactics we have seen out of the MSM for decades. Thank god I can turn off the TV and start to challenge these types.

      Let face it the legal system sucks and a number of the attorneys and judges acknowledge this. Yet I see little effort by most attorneys to attempt to solve the various issues. They think by practicing good law it will get the job done. It surely helps but good lawyering is easily wiped out by the stroke of a Judges pen.

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