- The Washington Times - Sunday, November 2, 2003

Critics of Justice Janice Brown of the California Supreme Court, President Bush’s nominee for the U.S. Court of Appeals for the District of Columbia, accuse her of being “out of the mainstream” because of her lone dissenting opinions. Such criticisms evoke the quip attributed to Benjamin Franklin in the musical “1776”: “Rebellion is always legal in the first person, such as ‘Our Rebellion.’ Only in the third person, ‘Their Rebellion,’ does it become illegal.” Justice Brown draws fire not because she dissents, but because she’s on the wrong side.

Complaints about Justice Brown’s lone dissents are both hypocritical and groundless. Numeric evidence proves that Justice Brown’s dissent patterns do not deviate significantly from those of other justices on the California Supreme Court. In light of the facts, to claim that being “outside the mainstream” is grounds for obstructing Justice Brown’s confirmation seems disingenuous at best.

To be clear, two of her most controversial opinions are not lone dissents. Hi-Voltage Wire Works, Inc. vs.City of San Jose (2000) invalidated a municipal program that required contractors bidding on projects to hire a certain percentage of women and minorities. Justice Brown’s opinion for the court garnered at least partial agreement from each of the other six judges. In American Academy of Pediatrics vs. Lungren (1997), the court struck down a statute requiring minors to notify parents before having abortions. There, two other justices also dissented. Even Justice Stanley Mosk, a noted pro-abortion liberal, agreed with Justice Brown that the statute was valid.

Justice Brown has been prolific on the bench, but her voting patterns are squarely within the mainstream of the other members of the California Supreme Court. Using an online database, I counted all of the opinions authored by each Justice since May 2, 1996, when Justice Brown joined the court.

One measure of agreement with other justices is the number of majority opinions authored. Here, the judge expresses the opinion of the court that becomes law. Justice Brown tied Justice Ming Chin for second place in authoring the most majority opinions.

Does Justice Brown dissent too often? She had 57 dissenting opinions, but Justice Joyce Kennard, generally considered liberal, had 71. Justice Mosk died in 2001, but even in two fewer years, he still had 67 dissents, 10 more than Justice Brown. These liberals disagreed with the rest of the court more often than Justice Brown.

But critics have charged that Justice Brown has authored too many “lone dissents.” A “lone dissent” is an opinion that doesn’t agree with anyone else’s on the court, not even in part. Surprisingly, both Justice Mosk and Justice Kennard had more than Justice Brown. I found 19 for Justice Kennard, 16 for Justice Brown and a whopping 27 for Justice Mosk. Again, despite two fewer years of opinion writing, Justice Mosk runs away with the lead. Justice Brown’s opponents seem suspiciously insincere.

Ah, but maybe Justice Brown’s lone dissents deviate from the mainstream when viewed as a percentage of her total dissents. Again, the data shows the opposite. Justice Brown’s ratio of lone dissents to total dissents is precisely the average for the entire court: 28 percent. Justice Brown scored slightly higher than Justice Kennard’s average, but lower than Justice Ming Chin, Justice Carlos Moreno or Justice Mosk, who rated 40 percent. Out of eight justices surveyed, Justice Brown ranks fourth.

Comparing the lone dissents to the total number of opinions authored produced similar results. Justice Mosk, Justice Kennard and Justice Brown have authored roughly the same number of opinions. Justice Brown scored about 1 percent higher than the court’s average of 5 percent. Justices Kennard, Moreno and Mosk scored 7, 8 and 11 percent, respectively. Again, key liberals had higher averages of lone dissents than Justice Brown. Yet her detractors say she is the one “outside the mainstream” because of these opinions.

In reality, Justice Brown is within the mainstream. Attempts to paint her as an outlier evaporate in the face of the truth. Plus, the complaints are hypocritical. Under the very terms framed by Justice Brown’s critics, the left-wing Justice Mosk emerges as the real anomaly.

The data suggest that Justice Brown’s opponents’ raising the specter of her frequent dissents is simply motivated by ideology. Justice Brown’s critics would do well to confine their remarks to her substantive qualifications.

Susanna Dokupil is an attorney and freelance writer in Houston.

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