The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Noah Feldman published a column about Dobbs that I can only describe as Brett Kavanaugh fan fiction. He imagines everything that will go through Kavanaugh's mind this term in Dobbs. And then tries to predict the next four decades of Kavanaugh's career if he votes the right (that is, left) way in Dobbs. Feldman balances Kavanaugh's concerns for conservatives and liberals; his desire to become the all-powerful swing Justice; the need to rehabilitate his career after the confirmation hearing; the longing to return to the esteem of fellow law professors (like Feldman!); and so on. It's like a SCOTUS choose-your-own-adventure book. If Brett Kavanaugh seeks temporary and empty praise from the left, turn to page 53. If Brett Kavanaugh wants to avoid the implosion of the conservative legal movement, turn to page 68.
Yet, there is a glaring omission in this fantastical tale. Feldman talks about everything that will go through Kavanaugh's mind, except the law! There is not a single sentence in the extra-long 2000+ word column about whether Kavanaugh thinks Roe and Casey were correct applications of the law. Surely, the Constitution would factor somewhere in Kavanaugh's calculus.
I'll admit, I have been quite harsh on Kavanaugh. But I still see him as really sharp legal mind. His much-undervalued Calvary Chapel concurrence provided the legal basis for Roman Catholic Diocese. I wish he would flex his intellectual muscles more often. But this pulp from Feldman is far more demeaning than anything I've written. He truly views Kavanaugh as this Machiavellian, power-hungry, affection-desiring, empty-suited jurisprude. No more. To Feldman, the meaning of the Fourteenth Amendment will play no role in Kavanaugh's thought process.
Indeed, Feldman offers a preview of how the reasonable law professors will frame the arguments: Kavanaugh can simply tighten up the "undue burden" standard. That vague standard, Feldman writes, "might be interpreted much more restrictively than it currently is." This stratagem won't work. I have been persuaded by Sherif Girgis that there is no middle ground. The Mississippi law is clearly invalid under Roe and Casey. No amount of finagling can get this law to pass the "undue burden" test. But if the Court tries to concoct some new balancing test, it will necessarily have to affirm the constitutional basis of Roe and Casey. And it will have to elaborate on Justice Kennedy's nausea-inducing pablum about liberty and jurisprudences of doubt. Feldman hopes that Roberts, Kavanaugh, and Barrett will replicate the Casey troika of Souter, Kennedy, and O'Connor. He writes, "[t]he result would be a defining moment in Kavanaugh's career as a justice, the way Casey was for his old boss." But I'm with Girgis: "In any scenario, an in-between approach to Mississippi's law would require Roberts or Kavanaugh to be less formalist than O'Connor, Kennedy, and Souter." I'll be happy to deliver the paper bags and fortune cookies to One First Street. But in my view, that opinion will not write.
Perhaps the most naked aspect of Feldman's column is the appeal to Kavanaugh's fear-of-loneliness: if you uphold Casey you can come lecture at Harvard and be showered in praise from law professors! It won't work. Kavanaugh will be protested for the rest of his life. And the second sentence in Brett Kavanaugh's obituary will be about Christine Blasey Ford. Nothing Kavanaugh can ever do can remove that taint. With the woke, one strike and you're out. Hell, one ball and you're still out! Look no further than Justice Kennedy's legacy. One of his own law clerks savaged AMK–who upheld Roe and constitutionalized gay marriage!–for his vote in the travel ban case. You can never be good enough for the left. Justice Gorsuch got roughly 24 hours of favorable press coverage for Bostock, then progressives went back to he's-destroying-the-administrative-state. Liberals routinely cancel their own in circular firing squads. People on the right should stay far away from these liberal loops–and definitely not try to sacrifice their principles to enter. The price of admission is not worth it.
Now Feldman is the good cop. He tried to use good graces to nudge Kavanaugh in Dobbs. Soon, the bad cops will come out. You know who they are. I'll read that psychoanalyzing of Kavanaugh like I read #FreeBritney threads deciphering Spears's Instagram posts.