Judge Janice Rogers Brown wants to return to the libertarian legal notions of the 1930s

Dahlia Lithwick wrote in Slate, Judge Janice Rogers Brown wants to return to the libertarian legal notions of the 1930s. Her point isn't as much about the opinion, but the tone of it, that it's really injecting politics into a judicial opinion.

"There’s one other point worth making, before we leave Judge Brown to her open-mic libertarian musings. She is, beyond any doubt, apt to appear on any short list for Mitt Romney’s choice to replace any of the four Supreme Court Justices who are currently in their 70s, some of whom will be 80 by the 2016 elections. In that light, this concurrence looks less like a judicial opinion than a job application. I have written before how ironic it is that a liberal jurist can be disqualified from a judicial confirmation hearing for expressing a single progressive idea in a law review article, whereas when it comes to conservative judicial nominees extreme and full-throated ideological exhortations are usually an added bonus. For Brown, the choice to write an opinion eviscerating New Deal worker and health protections at precisely the moment these issues are burning up cable television and Tea Party rallies is just smart politics. It’s hard to imagine a liberal shortlister attempting the same and surviving a Supreme Court confirmation bid. Or a confirmation bid of any sort, really."

"Liberals who don’t think of the courts as a political issue should read Judge Brown’s concurrence closely, not merely as an example of the ways partisan politics are bleeding into the federal courts, but as a warning about how radically the federal courts are poised to reshape our politics.   "

http://motherjones.com/kevin-drum/2012/04/judicial-restraint-pretty-much-obsolete-right-these-days: Kevin Drum wrote about this and then updated himself with feedback from his comments: "I've gotten some pushback on this from various quarters, most of it fair. First, everyone in comments is right that Brown is 62, much too old to be a serious contender for a Supreme Court appointment these days. Second, she was kinda sorta under consideration for the Supreme Court in 2005, but was considered too outspoken to get the job. Third, liberal judges have made similar comments in the past — though I think these comments haven't been quite as broad or radical as Rogers'. So, yeah, most likely Brown knows she's too old for a promotion, which means she's free to say whatever she damn well pleases. That's not necessarily praiseworthy, but it's probably not a job application either."