Bizarre, Constitutional Law, Courts, Lawyering

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

11-5065-1368692

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

  1. @Blouise. Sarcasm!!! Lawyers have a membership cartel (the BAR) that discriminates against none lawyer Citizens and uses the Courts to maintain the monopolistic powers using UPL through licensure laws. The cartel has drastically diminished the quality of justice in our country, as all monopolies do and has turned it into a profit center for those that I call the court house vultures. There are some good lawyers out there but many of them are arrogant ********* cowards that do not care about anything but winning at any cost. Trying getting an attorney to sue a more powerful attorney or Judge or the IRS and see where it gets you. 99% of the problems within this country can be solved via a quality judiciary. How to achieve that is another issue but is is not unachievable in this day and age.

  3. @Dredd, I still do not have a specific understanding of the term cowboy capitalism or for that matter crony capitalism. They’re newspeak along the propaganda methods noted in the book 1984, meant to confuse or misrepresent established economic terms, principles and/or theories. Don’t fall for this rhetoric. They’re BS terms, don’t use them. Apparently somebody wrote a book book about it so it must be true because the MSM picked up on it. It’s either free market capitalism or it isn’t. Some austrian economists speak in term of anarcho-capitalism and mini-archism that have specific meaning long determined. One is without government and the other is limited government, respectively. I could be happy with either one. People play around with words both in good spirit and in bad. We must be careful.

  4. “Why do you think that we all love lawyers so much?”

    I don’t love lawyers “so much’. I love lawyers a little.

  6. If dicta is just dicta then why does it matter. If she is not getting enough dicta on the court then she will have to look elsewhere. Us dogs use a different word that we cant repeat.

  7. “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?”

    ******************

    I think Judge Brown is bucking for a promotion and what better way than currying favor among the ultra-right in the Senate who are always looking for the next Herman Caine or JC Watts to be paraded before the public in a show of their solidarity with the African-American community. The Democrats are unlikely to oppose her and she is the stalking horse for the Right.

    What a country? Betray the interests of your own community and get a prize from their adversaries. Petain-ish, in a legal sort of way.

  9. 1. Concurring: Everybody want to believe that the laws of a nation are “not” created by the bench so as to make it look like democracies, democratic republics or other forms of political systems are viable systems when they are not. All political systems are power brokerage cartels controlled by the ruling oligarchy and always have been. All governments are fascist oligarchies that should be somehow replaced or abolished. They can not nor have not produced peace and prosperity for the majority over the long term. The laws of a nation are controlled by the judicial system, always have been and always will. Why do you think that we all love lawyers so much? Until we take the judiciary away from the control of politics, like the Law Merchant did to escape the various governments, we will forever be in their claws and they, as we have seen throughout the ages are quite sharp. She is correct to state that free market rhetoric and the realty of ubiquitous regulation are antithetic and that the oligrachy did infact take full control over our political economy by the 1930s. That is however, quite a subjective statement and should have been withheld.

    2. Dissent: New speak at it again. What the **** is cowboy capitalism. I don’t remember seeing that phrase in any economic books, essays or articles written by anybody of prominance throughout my lifetime and I’ve studies the majority of them.

  12. Sentelle Jack and Brown Jill went up the hill
    each had a dollar and a quarter
    Brown Jill came down with two and a half
    Do you think they went up for dicta water?

  14. A rogue and mavericky cowgirl judge & cowboy judge ride a bull till bells go off in the minds of legal scholars.

  15. Brown has always had a tendency to ridicule in her opinions. There are times she reminds me of Scalia.

  16. Considering Kagan is a socialist who views the court as a way to promote socialism, I dont think the left has much of a leg to stand on.

    I am all for impartiality if it applies to both sides.

    The courts in this country have been political since the progressives figured out they could use the court system to change the political climate. Depending on who you believe, it started somewhere around 1890 – 1910.

    But more to the point she is right, large corporations in league with government have made competition harder for smaller actors due to burdensome regulations tailored by the larger corporations to make it harder for smaller companies to compete.

    Isnt that called fascism?

  17. Actually it somewhat reflects my view that the format for judicial opinion and precidence is archaic and most everyone would be better served by codifying (enumeration of common law judicial opinions to the format of statutory law) these rather than expressing them as personal interpretations in the form of analysis.

    It would offer a much more easily understood and researchable format rather than having a memory or keyword intensive format that requires much more effort.

    This is not to say the process to arrive at the decision need be changed, but the rendition to text would be better served in a statute resembling format.

  18. Political views are part of law these days. If judges actually followed the Constitution, which is the supreme law in the U.S., America would look much different than it does today. Judges do not follow the Constitution. They promote their political ideology. Some judges are better at trying to disguise their political views which they express in their judicial opinions with quotes from historical documents, or strained appeals to precedent, but they all express their politics nonetheless.

  19. Since St. Ronald’s Presidency the GOP has sought judges qualified on their politics not on their judicial abilities. The end results are seen today in garbage coming from the courts in the form of opinions. Even the USSC is stacked with 5 corporate worshiping troglodytes posing as jurists. This is no surprise, “justice’ will not only be unattainable it will be unrecognizable when they are through.

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