Noah Feldman Indulges in Brett Kavanaugh Fan Fiction on Dobbs


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.

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  1. 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.

    Since the law and the Constitution never figure in the calculus of left law “judges”, “justices”, and law professors, we’re not surprised by this.


    1. Leftist law professors are going back to the roots of the constitution: natural law.

      All men are created equal is replaced with free rent is a human right.

      1. Except, of course, the eviction moratorium decisions are statutory, and don’t rely on rights or natural law.

        But it’s what you feel, so why not post as though it were true?

        1. That’s the part that you tripped over? Not the implication that Kavanaugh is somehow “leftist”?

          1. Different things jump out different days.

            Last week I was yelling about the ‘easy to become a leftist traitor to conservativism, hard to ever stop being a giant evil liberal’ train of so many here.

      2. No more Ivy indoctrinated scumbags on the Supreme Court. They are know nothing, done nothing, bookworms. They are totally biased in favor of big government that does nothing well. They have all been a catastrophe for our nation and are part of the failed elite.

        1. Let me guess. You got rejected by Harvard.

    2. Yup, Greg, if they agree with you, they are being faithful to the Constitution. If they disagree with you, then they are ignoring the Constitution. The new standard is whether they agree with Greg.

    3. Pretty much.
      As another VC blogger put it:

      “Law is politics,” and only politics, according to a mantra popular on the legal left, and therefore the law should not be an independent constraint to doing the right thing politically.

  2. Kavanaugh is a Bush loyalist…Bush Republicans just want power.

  3. Yes, fan fic about Supreme Court justices. That’s terrible…

  4. This is madness.

    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.

    So one of Kennedy’s clerks is now “the left.”

    1. Justice Kennedy’s law clerk “savaged” Kennedy. Therefore you can never be good enough for the left.

      Holy awful inference Batman!

  5. Josh Blackman is ANGRY.

    Someone else is trying to publish Supreme Court fanfic. That’s Blackman’s beat!

    Time to up your game Josh. Time to move to slash fic. In your heart, you know you want to.

    1. That was my first reaction too.

  6. Coming from a fellow whose hatred for Chief Justice Roberts knows no bounds because the Chief’s results are not sufficiently far to the right, the “You can never be good enough for the left,” sentence is one of the funniest things I’ve read this year. An accurate assessment would admit that extremists on both sides are often too quick to savagely criticize anyone who doesn’t adhere to the received ‘orthodox’ positions on an issue.

  7. If a Josh Blackman post drops in the blog and nobody comments, does it make a sound? Let’s experiment.

    1. You just ruined your own experiment.

      1. The experiment obviously would have to await the next blog post, since there had already been several comments on this post. Are we on board for the next one?

        1. Sounds like a righteous proposal!

  8. The sad thing about Josh’s terrible blogging and academic work is that it’s not going to stop him from eventually receiving a district court judgeship that he’s entirely unqualified for.

    1. This assumes Republicans will be in a position to arrange federal judges without Democratic votes anytime soon.

      The United States just isn’t backward, bigoted, superstition, or ignorant enough for that. Not any more. And the trends — in a nation that becomes less White, less religious, less rural, less bigoted, and less backward essentially every day — do not favor diminution (let alone reversal) of the culture war’s tide.

      So relax, decent, modern, reasoning Americans — the Sage of South Texas seems destined to remain at a downscale law faculty (and at a White, male blog) for the beyond-foreseeable future.

    2. Well, based on his temperament here, at least he’ll hate it.

      1. He’d certainly be disappointed to find out that district court judges must actually proceed over trials.

    3. IPLawyer : “….. it’s not going to stop him …..”

      Perhaps. But my theory is Blackman’s Kavanaugh obsession is rooted in deep feelings of inadequacy. After all, by the time Kavanaugh was Josh’s age today, he’d already run the most crudely partisan special counsel inquiry in the whole wretched history of the genre – three-plus years “investigating” the suicide of Vince Foster.

      Kavanaugh had already helped lead the faux-riots that shut down 2000 Florida election recounts. Soon he’d snag a bit-part in the GOP’s grotesque exploitation of poor brain-dead Terri Schiavo and nose his way into the Elián González controversy.

      I bet Blackman looks at Kavanaugh and sees his better: Someone willing to do anything necessary to get ahead.

      And I mean anything – no matter how sordid.

    4. “eventually receiving a district court judgeship”
      Let’s hope that you are wrong

      1. If a judgeship is to pass, I’d seriously rather have him be on a circuit court. Much better for him to be shut up in chambers with some equally insufferable clerks writing some self-indulgent blog-post labeled a concurrence than sentencing anyone or dealing with the parties.

  9. “except the law! ”

    Feldman is realistic, SC justices are politicians in robes.

  10. ” I’ll read that psychoanalyzing of Kavanaugh like I read #FreeBritney threads deciphering Spears’s Instagram posts. ”

    So . . . ardently? And with just one hand at the keyboard?

  11. I think the “fan fiction” label is silly.

    It’s certainly understandable that a person who feels strongly about an issue would right in a way that attempts to persuade the person who is very plauibly the Court’s swing justice Justice on the issue to vote their way. Perhaps Professor Feldman is right that Justice Kavanaugh is concerned about his reputation and swayed by flattery, and might be more likely to vote to continue Roe at full strength if proponents of abortion eased up their criticism of him and gave him reason to think they would start saying nice things about him if he did. Perhaps not.

    I would sincerely hope that a matter as important as this will not be decided by flattery and vanity. It’s even possible that if Professor Feldman turns out to be right, and Justice Kavanaugh is in fact as prone to flattery as Professor Feldman suggests, perhaps openly accusing him of this might not be the most politic way to make friends and influence him.

    But regardless of that, I would hardly call a piece that is attempting to identify a weakness in Justice Kavanaugh and wxploit it “fan fiction.” If Professor Feldman’s aeticle communicates anything, it communicates that people willing to pretend to be his fans in order to get something they want out of him in the short term are not necessarily actually going to be his fans in the long run.

  12. Geez JB.
    Give your pointless speculations a rest.

    1. Keep up the good work, Prof. Blackman, and never mind these naysayers . . . you are the future of conservative legal academia.

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