The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Ruth Marcus of the Washington Post is the newest member of the Brett Kavanaugh fan fiction Club. She imagines that the left can "nudge" Kavanuagh to uphold Roe by offering positive reinforcement–like he is a puppy who wants scooby snacks.
It is possible to imagine Kavanaugh joining Chief Justice John G. Roberts Jr. in refraining from outright abandonment of constitutional protection for abortion rights.
So what is the best way to nudge him in that direction? Here's the thing to understand about Kavanaugh: He wants to be liked and admired. Unlike some of his conservative colleagues, he enjoyed being part of, and respected by, the legal establishment; teaching at Harvard Law School was important to him. In the aftermath of Christine Blasey Ford's testimony, and Kavanaugh's intemperate outburst, that kind of acceptance is no longer available to him.
But there are ways for him to carve out a reputation as a thoughtful justice, win plaudits from those whose acceptance he still craves and prove that the searing confirmation process did not leave him embittered.
Even some of those who want to narrow or eliminate the right to an abortion almost certainly fear what eliminating it entirely will do to their party's future at the polls. It is not hard to imagine Kavanaugh, who has the most extensive experience in politics among the justices, wanting to avoid deciding the Mississippi case in a way that would likely hurt Republicans in the midterm elections a few months later.
The smartest strategy, therefore, is to encourage Kavanaugh when he demonstrates temperateness and restraint. The dumbest approach is to alienate him. There isn't much prospect of good results from the Supreme Court as currently constituted, but Kavanaugh represents the last best hope for less bad outcomes.
Marcus and Noah Feldman hold Kavanaugh in very low regard. They view him as a craven jurist, who will modify his decisions to receive plaudits from elites. They also view him as a political actor, who will modify his decisions to help Republicans in the election.
May I offer some free advice for the Brett Kavanaugh fan fiction club? Stop saying aloud what you really think. The well-worn playbook you used against Justice Kennedy will not work against his replacement. This despicable, demeaning rhetoric, will only fortify Justice Kavanaugh's resolve to follow the law, and not be swayed by self-serving advocates.