www.sfgate.com Return to regular view NEWSMAKER PROFILE Janice Rogers Brown
Majority opinion -- passionate but hard to peg
State Supreme Court's wild card could be key in upcoming votes
Harriet Chiang, Chronicle Legal Affairs Writer
Sunday, April 29, 2001
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On first take, it's hard to believe that Janice Rogers Brown, the daughter of Alabama sharecroppers and the first African American woman on the California Supreme Court, would write a decision jeopardizing hundreds of affirmative action programs throughout the state.
But friends say Brown has always resisted stereotypes based on her gender or race. A conservative and a Republican, she was Gov. Pete Wilson's chief legal adviser and eventually became his final appointment to the state's highest court.
After four years as a justice, Brown has staked a claim for herself as the outspoken conservative on a court steering a moderate course. Her opinions are pointed and provocative, and she doesn't mind taking swipes at her colleagues.
"She's a very gutsy justice," said Gerald Uelmen, a professor at Santa Clara University School of Law, who closely follows the court. "She's not afraid to stand alone."
And with the court increasingly divided, Brown could play a pivotal role in the next few months as justices decide key issues of gun control, jury nullification and taxpayer rights. The court will also tackle a case -- the first of its kind nationally -- involving the 101 California St. shooting. In it, justices will decide whether gunmakers can be held legally responsible for the criminal use of weapons.
Brown is best known for her November decision upholding Proposition 209, the 1996 voter-approved initiative barring preferential treatment for women and minorities. In writing the majority opinion, Brown attacked the entire history of affirmative action, a move that Chief Justice Ronald George, in a rare dissent, condemned as being "unnecessary and inappropriate."
Ward Connerly, one of the prime backers in the 1996 initiative, is a big fan of Brown's. He says she has "a profound respect for civil rights," but also believes in individual responsibility. Although she is a prominent minority woman, he said, "she doesn't carry on her shoulders the burdens of anybody else or the expectations of anybody else."
A liberal in her college days, the 51-year-old justice became a conservative after law school convinced her that the courts should be not be used for sweeping social changes.
She is full of contradictions and also unpredictable. She anchors the right wing of the high court, but occasionally displays an independent streak and bolts to the liberal side in both criminal and civil matters, suggesting a libertarian leaning.
As a conservative, she has voted to require drug testing of employees and to allow cities to clear the streets of gang members. But she joined the liberal members in objecting to child molesters being prosecuted years after the alleged crime.
She is a quiet, intensely private person -- Brown refused repeated requests to be interviewed for this story and others. In court, she asks few questions when lawyers argue their cases. But when she writes an opinion, she becomes a pugnacious street fighter on legal-size paper.
"She's very passionate about what she believes in and that passion comes across in her dissents," said Justice Vance Raye of the state appeals court in Sacramento and a friend of the justice's for many years.
Brown came onto the court in 1996 amid controversy. She was the only justice ever to be rated "not qualified" by the state agency that evaluates all nominees to the court. The State Bar Commission on Judicial Nominees found her inexperienced -- she had been an appellate court judge for less than two years -- and overly subjective.
Five years later, she has surprised even liberal commentators, who say they are impressed with her intelligence, historical perspective and independence.
Her bare-knuckles style of writing can delight legal experts or make them wince. At the very least, she shakes the stereotype of court opinions as mind- numbingly dull recitations.
Even when she's in the majority, she often writes separate opinions, taking a more extreme position than the rest.
Brown sprinkles her decisions with quotes and characters from Plato's "Republic," George Washington's farewell address, John Grisham novels and songwriter Billy Preston's 1970s song "Nothing From Nothing Leaves Nothing."
Some legal experts find her approach a welcome contrast to most decisions, which tend to be dry and written by law clerks. But court observers say she can get unnecessarily personal with those who disagree with her.
"She's not building consensus," said one appellate court judge. "She's seen as stridently advancing a certain ideological philosophy more than a legal position."
Her defenders say that Brown is motivated by a sense of justice, not by any preconceived notions or political beliefs. "She's not an ideologue, and she gets to her position after a lot of deep thought," said state Sen. Chuck Poochigian of Fresno.
Her passions and forthright opinions came through in the majority opinion she wrote in the Proposition 209 case.
With the court deeply divided, Brown wrote a majority opinion that stung liberals and minorities because of her condemnation of several key civil rights rulings. "There was something there to offend just about everyone," Uelmen at Santa Clara University said.
Clark Kelso, a professor at McGeorge School of Law in Sacramento, was not as harsh on Brown and her version of affirmative action. "It may be an uncomfortable version of history to read," he said, "but I don't find it a particularly surprising history."
Brown was born May 11, 1949, in Greenville, Ala., about 50 miles south of Montgomery. As a child growing up in the segregated South, she was surrounded by color barriers in schools, restaurants and hospitals.
"We could, however, live our lives without seeing a movie if it meant being relegated to the balcony," Brown recalled in a 1996 interview with California Women Lawyers.
After graduating from UCLA law school, Brown spent eight years at the state attorney general's office working on both civil and criminal cases. In 1991, she became Wilson's legal affairs secretary, advising him on such issues as term limits, executions and reapportionment.
Wilson appointed her to the state Court of Appeal in October 1994. In May 1996, she was confirmed to the state Supreme Court.
Brown is not particularly close to any of her colleagues, court sources say.
Although she works in San Francisco, she chooses to live in Rancho Murieta, about 20 miles outside of Sacramento, in a gated community with her husband, a jazz musician. Most of her colleagues see her only on Wednesdays, when they meet to decide what cases to review.
While many minority lawyers find her conservative leanings at odds with their own beliefs, several insist they are not disappointed with Brown.
"There is perhaps an expectation or a hope that she could do more for African Americans and other groups historically underrepresented or discriminated against," said Lindberg Porter, a former president of the Bar Association of San Francisco and an African American.
"But that is a heavy burden to carry, that's why I can't be critical. She has an absolute right to say, 'No. Why should I have greater sensitivity than anybody else on this court.' "
Biography State Supreme Court justice - BORN: May 11, 1949, in Greenville, Ala. - EDUCATION: California State University at Sacramento (B.A., 1974); University of California at Los Angeles (J.D., 1977). - BACKGROUND: Admitted to the California Bar on Dec. 28, 1977. Served as deputy legislative counsel from 1977 to 1979; deputy attorney general from 1979 to 1987; and deputy secretary and general counsel for the California Business, Transportation, and Housing Agency from 1987 to 1989.
Worked in private practice from 1989 to 1991.
Became legal affairs secretary to Gov. Pete Wilson in 1991.
Appointed to the state Court of Appeal for the Third District, Nov. 4, 1994.
Elevated to the state Supreme Court on May 3, 1996.
Justice Brown -- in her own words -- Justice Janice Rogers Brown may ask few questions in court, but she holds little back in written opinions. Brown has a broad sense of history, an undeniable literary flair and a tendency to fling a few zingers. While all of her decisions can be lively, she saves most of her rhetorical punches for dissenting opinions. Here is a sampling. -- In a 1997 decision that allowed cities to clear the streets of gang members who annoy or intimidate residents, she wrote: "Liberty unrestrained is an invitation to anarchy." -- She backed drug testing for both job applicants and current employees up for promotion in government, calling it one of the trade-offs of being a public employee. "Such choices are neither easy nor comfortable," she wrote. "But that is life. Sometimes beauty is fierce; love is tough; and freedom is painful." -- When the court ruled that the governor and Legislature could appoint members of the State Bar Court, a power that previously belonged solely to the state Supreme Court, Brown took a jab at colleagues in her dissenting opinion: "The preservation of a viable constitutional government is not a task for wimps." -- She was also aghast when the majority allowed a judge to ban racial slurs in the workplace, saying they had frivolously brushed away free speech rights. "I can conceive no imprisonment so complete, no subjugation so absolute, no debasement so abject as the enslavement of the mind." -- In a relatively obscure antitrust case, she offered this reminder to her senior colleagues: "The quixotic desire to do good, be universally fair and make everybody happy is understandable. Indeed, the majority's zeal is more than a little endearing. There is only one problem with this approach. We are a court." . Harriet Chiang