Janice Rogers Brown

In Hi-Voltage Wire-Works, Inc. v. City of San Jose (2000), Brown wrote overturning a program of racial set-asides adopted by the city of San Jose.[7] The opinion upheld an amendment to the California Constitution which banned discrimination against or preferential treatment for any individual or group on the basis of race, sex, color, ethnicity, or national origin in public employment, education, or contracting.

Brown also wrote the majority opinion in Varian v. Delfino, an important First Amendment case involving the interpretation of California's SLAPP statute.

In another case, American Academy of Pediatrics v. Lungren (1997), Brown dissented from an opinion striking down a parental consent law for abortions.[8] Brown, who declined to discuss her personal views on abortion when she was appointed to the court, defended the law during oral arguments. “Isn’t the law just acknowledging less capacity on the part of minors than adults, and isn’t that rational?” she asked.[9]

In 2000, she authored the opinion in Kasler v. Lockyer, upholding the right of the State of California to ban semi-automatic firearms, and of the Attorney General of California to add to the list of prohibited weapons. Her opinion in that case clearly explained that the decision was not an endorsement of the policy, but rather recognition of the power of the state.

Brown was the lone dissenter to contend that a provision in the California Constitution requires drug offenders be given treatment instead of jail time, and also voted to uphold California's ban on semi-automatic firearms.[10]

Brown with President George W. Bush, Priscilla Owen, and Carolyn Kuhl in 2003

Brown meeting with Senator Norm Coleman in 2005 prior to her confirmation

Brown was nominated by President George W. Bush to the U.S. Court of Appeals for the District of Columbia Circuit on July 25, 2003 to fill the seat vacated by Stephen F. Williams.

The Senate Judiciary Committee held a hearing on her nomination on October 22. After her name had passed out of committee and had been sent to the full Senate, there was a failed cloture vote on her nomination on November 14, 2003. Brown's nomination was returned to the President under the standing rules of the Senate when the 108th United States Congress adjourned.

Bush renominated Brown on February 14, 2005, early in the first session of the 109th United States Congress. On April 21, 2005, the Senate Judiciary Committee again endorsed Brown and referred her name to the full Senate. On May 23, Senator John McCain brokered an agreement between seven Republican and seven Democratic U.S. Senators, the Gang of 14 deal, to ensure an up-or-down vote on Brown and several other stalled Bush nominees.

The Leadership Conference on Civil and Human Rights opposed her nomination to the court based on her record on the California Supreme Court where she exhibited "a strong, persistent, and disturbing hostility toward affirmative action, civil rights, the rights of individuals with disabilities, workers' rights, and the fairness of the criminal justice system."[11]

Democrats blocked Brown's confirmation because they saw her as a "conservative judicial activist who ignores the law in favor of her own political views", "one of President Bush's most ideological and extreme judicial nominees", and a "jurist who supported limits on abortion rights and corporate liability and opposed affirmative action."[12] On June 8, freshman Senator Barack Obama, in a speech on the floor of the U.S. Senate, characterized her judicial activism as social darwinism.[13][14] He said:

Justice Scalia says that, generally speaking, "the legislature has the power to make laws and the judiciary should only interpret the laws that are made or are explicitly in the Constitution." That is not Justice Brown's philosophy. It is simply intellectually dishonest and logically incoherent to suggest that somehow the Constitution recognizes an unlimited right to do what you want with your private property and yet does not recognize a right to privacy that would forbid the Government from intruding in your bedroom. Yet that seems to be the manner in which Justice Brown would interpret our most cherished document.[13]

Brown's nomination to the Court of Appeals was confirmed on June 8, 2005 by a 56–43 vote, after centrists in the Senate "signed a pact pledging not to filibuster judicial nominees except in 'extraordinary' circumstances.[12][15][16] She received her commission on June 10, 2005.[3] She began hearing federal cases on September 8, 2005. Brown retired from the U.S. Court of Appeals for the D.C. Circuit on August 31, 2017. [3]

One month into Brown's tenure she was reportedly considered as one of 13 potential nominees to replace retiring Justice Sandra Day O'Connor on the United States Supreme Court.[4] The potential candidates included John G. Roberts, who was initially chosen by Bush but instead nominated for the seat of Chief Justice William Rehnquist who died unexpectedly, and Samuel Alito, who was then nominated for O'Connor's seat. In July 2005, Senator Joe Biden appeared on Face the Nation, and said a filibuster to prevent Brown from replacing O'Connor was more likely than if she were nominated to replace a more conservative justice, like Rehnquist.[17][4][18][19]

Brown's dissenting opinion in Omar v. Harvey sets forth her judicial outlook on the constitutional balance of powers.[20] The United States Court of Appeals for the D.C. Circuit upheld an injunction that forbade the U.S. military to transfer Shawqi Ahmad Omar, a suspected insurgent, out of U.S. custody while his habeas corpus suit was pending.[21] Brown's dissent took the view that the majority was trespassing on the Executive Branch's authority:

Summarizing its position, the majority declares: "The United States may certainly share information with other sovereigns ..., but it may not do so in a way that converts Omar's 'release' into a transfer that violates a court order." This is a striking conclusion. The majority in effect holds that, in the proper circumstance, a single unelected district court judge can enjoin the United States military from sharing information with an allied foreign sovereign in a war zone and may do so with the deliberate purpose of foiling the efforts of the foreign sovereign to make an arrest on its own soil, in effect secreting a fugitive to prevent his capture. The trespass on Executive authority could hardly be clearer.[22]

In 2012, she wrote a concurring opinion for the case Hettinga v. United States in which she severely criticized the dominant post-Lochner approach in the U.S. judiciary, that laws involving economic policy deserve "a strong presumption of validity."[23][24]

In June 2017, Brown wrote for a unanimous circuit panel finding that the next friend of Yemenis killed in a U.S. drone strike could not sue under the Torture Victims Protection Act nor the Alien Tort Statute because the attack was not justiciable.[25][26] However she wrote a separate concurring opinion that criticized this lack of oversight, which is barred by precedent, concluding, "The political question doctrine, and the state secrets privilege confer such deference to the Executive in the foreign relations arena that the Judiciary has no part to play. These doctrines may be deeply flawed."[27]

In August 2017, Brown partially dissented when the court found that the Military Extraterritorial Jurisdiction Act authorized the prosecution of the Nisour Square massacre killers.[28][29]