Nine years ago, the California Supreme Court upheld a state law similar to the Affordable Care Act’s rules requiring most employers to include birth control coverage in their employee health plans. The sole dissent in that case was Justice Janice Rogers Brown. Nearly a decade later, Brown got her revenge. Though no longer a member of California’s highest court — President George W. Bush appointed her to the United States Court of Appeals for the District of Columbia Circuit over the strenuous objections of Democrats — Judge Brown is now the author of a 2–1 opinion holding that religious employers can ignore the federal birth control rules. What was once a fringe view held by a lone holdout is now the law in the second most powerful court in the country.
Judge Brown’s opinion barely conceals her contempt for progressive legislation. Prior to her nomination to the D.C. Circuit, Brown labeled the New Deal a “socialist revolution,” and she likened Social Security to a kind of intergenerational cannibalism — “[t]oday’s senior citizens blithely cannibalize their grandchildren because they have a right to get as much ‘free’ stuff as the political system will permit them to extract.” Since joining the federal bench, she authored a concurring opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect. The very first sentence of her birth control opinion labels the Affordable Care Act a “behemoth.”
So there was never any doubt how Brown would vote on this particular challenge to women’s access to birth control. Her opinion was joined by Judge A. Raymond Randolph, a conservative George H.W. Bush appointee. Carter-appointed Judge Harry Edwards dissented.
Coincidentally, Brown’s opinion comes just one day after Senate Republicans reignited the filibuster wars by filibustering the first of three Obama nominees to her court. Currently, the D.C. Circuit is evenly divided between Democratic and Republican active judges, but a large number of Republican judges in partial retirement allow the GOP to dominate the court. Senate Minority Whip John Cornyn wrote in a Fox News op-ed that Republicans should prevent any of Obama’s nominees from being confirmed to this court to prevent Democrats from gaining a majority. Although federal appeals courts typically hear cases via randomly drawn three-judge panels, the court’s rules permit a majority of the court’s active judges to displace any decision reached by a three-judge panel.
Senate Democrats waged an unsuccessful effort to filibuster Judge Brown’s nomination during the Bush Administration — largely because of her strident opposition to programs such as Social Security — but that filibuster was eventually defeated after Republicans threatened to invoke the so-called “nuclear option” to eliminate filibusters of judicial nominees. The deal that allowed Judge Brown to be confirmed also paved the way for Judge Priscilla Owen’s nomination. Yesterday evening, Judge Owen authored an opinion reinstating a Texas anti-abortion law blocked by a lower court judge.
There is a lesson here for Democrats trying to decide whether to invoke the nuclear opinion in the D.C. Circuit fight that Senate Republicans started this week. When Republicans had the courage to demand what they wanted and put a serious threat behind it, they got two of the most conservative judges in the country. If Senate Democrats follow suit — either by forcing Republicans to cave or by carrying through on a threat to nuke the filibuster — they will also win their fight to get President Obama’s nominees confirmed.