Noah Feldman Indulges in Gorsuch and Barrett Fan Fiction

Feldman imagines some hypothetical battle between Gorsuch's consistency and Barrett's doctrine.

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In August, Noah Feldman wrote a bizarre column about Justice Kavanaugh. He views Kavanaugh as a feckless naif who can be plied by liberal elites. Feldman apparently holds Kavanaugh in very, very low esteem. By contrast, Feldman seems to hold Justice Gorsuch in very, very high esteem. The Harvard Law professor penned a lengthy, fawning column about Gorsuch's scholarly bona fides. Perhaps Feldman is trying to get on Gorsuch's good graces. If so, I doubt this transparent effort will pay dividends. Perhaps the trait I admire most about Gorsuch is his utter lack of concern about what others think of his work. As flawed as Bostock was, Gorsuch had the courage to follow his convictions to a very precarious place.

Still, Feldman can't help but engage in a bit of Gorsuch fan fiction. Whereas Kavanaugh can be manipulated by liberal accolades, Gorsuch can be affected by calls for consistency. Feldman writes:

But there will be other issues where Gorsuch's commitment to consistency may lead him into surprising philosophical neighborhoods, as in the Bostock case. Gorsuch's activism means he is open to future arguments for consistency that liberals will doubtless direct toward him.

Feldman's column really should have ended here. But the last five paragraphs take a very different turn. Suddenly, Justice Barrett makes an appearance. These paragraphs seem like they were written for a different column about Barrett, but Feldman lumped them onto the Gorsuch column.

Here, Feldman imagines a competition between Gorsuch and Barrett: which Justice will inherit the legacy of Justice Scalia? Again, Feldman clearly does not think Kavanaugh has the intellectual heft to participate in this philosophical battle.

Feldman imagines a divide. Justice Gorsuch insists on consistency, rather than deferring to conservative outcomes. By contrast, Justice Barrett does not insist on consistency, but instead uses doctrine to craft creative solutions:

Whether Gorsuch's ambition to achieve conservative leadership succeeds depends a lot on whether other conservatives prefer his insistence on consistency to deference to conservative outcomes. Justice Barrett seems to be less consistency-obsessed than Gorsuch. She is also a credible, competing heir to Scalia, having clerked for him and written several academic articles about his legacy.

In lawyer's terms, Barrett is a more subtle doctrinalist than Gorsuch. That means she can put herself into a complex area of legal doctrine and craft a creative solution from existing legal materials. (She has already hinted as much in an important religious-liberty opinion that sought a more subtle approach than that advocated by Gorsuch.) In short, Barrett is a lawyer's lawyer.

Gorsuch, by contrast, wants to tear down the doctrinal edifice and replace it with something new and logically consistent. In this sense he is a good son of Reagan-era conservatism, which talked the talk of revolution.

This distinction is nonsensical. Conservatives do not favor consistency as an end unto itself. Rather, formalistic doctrines like originalism and textualism tend to yield consistent results. Consistency is a virtue of formalism, but not an aspect of the doctrine. I view Gorsuch and Barrett, as well as Kavanaugh, as formalists. That they reach different results (Bostock for example) does not mean they have different legal philosophies.

Moreover, I am flummoxed by Feldman's argument that Barrett prefers to "craft a creative solution from existing legal materials." Creativity is not a trait judges should emulate. Judges should be boring, and not surprise anyone. If a judge is crafting arguments the parties did not present, then the judge has abused his discretion. I have yet to see anything from Justice Barrett's brief time on the bench suggesting that she would make stuff up. Then-Professor Barrett ridiculed Chief Justice Roberts's mandate-as-a-tax saving construction. And Barrett's Fulton concurrence, which Feldman cites, was not premised on some sort of judicial ingenuity. She had open questions about what standard would replace Smith, but she explained that it was not necessary to reach such questions now. What exactly was "creative" about the Fulton concurrence?

Here, I think Feldman is once again fantasizing out loud about what type of Justice he hopes Amy Coney Barrett becomes. Feldman hopes that Justice Barrett can be plied by liberals to create creative legal arguments to avoid reaching conservative results. Once again, some free advice for the left: stop saying aloud how liberals can manipulate conservative justices. These tactics will backfire.

Feldman also fantasize about how young conservative lawyers (present company no doubt included) will perceive Gorsuch and Barrett. (Again, Kavanaugh apparently is irrelevant):

It remains to be seen whether today's young conservative legal intellectuals, who will be the ultimate king or queen makers, prefer Gorsuch's boldness and open ambition or Barrett's more lawyerly command of what has become a generation-old conservative legal tradition.

How about all of the above? I have been critical of all the Justices, but there are attributes of all of them that I find commendable. In some cases, I'm on #TeamNeal, other cases #TeamAmy, and other cases with #TeamBrett. In the best case scenario, the troika is unified.

I am doubtful any Justice can replace Justice Scalia. It is foolish to even expect any one person to fill his shoes. Scalia spent nearly four decades building a legal school of thought from the ground up. Gorsuch, Kavanaugh, and Barrett have a different mission ahead of them. Rather than establishing a movement, they will maintain and expand it. The three are just getting started.

NEXT: A Booster Shoot For Presidential Administration

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  1. Even though I disagree with Prof. Blackman most of the time I always look forward to his provacative essays. But this time it seems he is just wasting electrons, I mean, who really cares what an obscure law professor writes about three new Justices each of whom has yet to make a mark on the legal canon. I would suggest that next time Prof. Blackman feels the urge to write something like this on a Sunday he kick back, grab a cold Lone Star in a long neck and watch a little football.

    1. Yeah, Prof. Blackman complaining about Supreme Court speculation being fan fiction is more than a little ironic.

      1. Josh is whining that Feldman is kissing Gorsuch’s ass, and is doing so to get on the Justice’s good graces. Here, where JOSH is going on to also kiss Gorsuch’s ass…is Josh doing this to also get on Gorsuch’s good graces? Or is Josh doing this for some other, unnamed, reason?

        1. I come from, a different POV about the Trump nominations (I think they’re all trash — not as trashy as Obama’s, but not a different species) but I thought this article fit Blackman’s definition of “fan fiction” about as well as Feldman’s, and the almost-clearly-stated motive was to preserve his dreams of influencing them by praising them.

  2. ” The three are just getting started. ”

    When the Court is enlarged, those three will largely be finished.

    (Is Mick’s guitar turned on — other than at his monitor?)

    1. Artie’s bigotry is enlarged. The court will not be.

      7-2

    2. Rev, your foam-flecked declarations of the imagined future triumph of your Church is a really tired act. Do I understand properly that you’ve kept this up for a decade or so under multiples handles? Hadn’t you better hurry up and get a life? That’s going to take considerable attention for a mental defective like you, so you need to get cracking.

      1. “Imagined future” seem odd qualifiers with respect to the triumph of my side in the American culture war.

        First, the victory of the liberal-libertarian mainstream against conservatives is vividly real. Second, it has been occurring for at least a half-century.

        That mainstream have been shaping our national progress and is positioned to continue to do so — against the wishes and efforts of Republicans and conservatives — for so long as any of us can reasonably foresee. My preferences — reason, education, tolerance, modernity, science, progress, strong communities, mainstream educational and cultural institutions — prevail in America. Conservatives’ preferences — backwardness, intolerance, superstition, ignorance, can’t-keep-up rural and southern communities, backwater religious schooling, separatist right-wing organizations — lose ground steadily.

        I’m just describing the reality-based world, and the forceful tide of American progress.

        I have but one handle here — at least, since Prof. Volokh aimed his ban hammer and imposed partisan censorship (with prejudice, apparently) on poor Artie Ray Lee Wayne Jim-Bob Kirkland, whose biggest offense seems to have been that he never called for liberals to be shot in the face, gassed, sent to Zyklon showers, or placed face-down in landfills. Instead, Artie Ray jumped on Prof. Volokh’s last good nerve by making fun of conservatives a bit too deftly for Federalist Society tastes, and got himself banned for it.

  3. Making up stories and deciding to believe them is in fashion. Want something about government to be true? Just make up a story where it’s true! Tell people the story and insist it’s true. If people doubt your narrative (you know, the one you just made up), name-call them and invoke some dramatic historical story to “shame” the doubters.

    Before long, you’ll be a “respected” “journalist” and commentator.

  4. If you read SCOTUS opinions for any amount of time you realize that neither side has any legal philosophy or consistent application of the laws. They use whatever legal reasoning they need to get the results they want. Ds are just as guilty as Rs, but Rs are the ones who more forcefully deny that they do it.

    1. You have never read a court opinion, paid troll for the democrat party.

      1. I have, many times, and I agree with his disparagement, which you somehow haven’t noticed is directed pretty much as much against the (D) hacks as the (R) ones.

  5. I’ll grant Blackman that his rant about how Roberts must retire at least something like a demand, so I guess it’s not “fan fiction”

    1. Proofread yourself before posting. Or at least do so afterwards, and post corrections if the first attempt was as unintelligible as you are here.

      Blackman is indeed writing exactly what he calls “fan fiction”, btw.

  6. Kavanaugh incited a mob in order to help George Xi Bush steal the 2000 election…contrast his treatment with the January 6th Trump supporters. Oh, and Bush lied us into the most asinine war in history.

    1. I didn’t know that about Kavenaugh. Thank you for providing some positives to help us come to terms with what some of us see as a potential squish.

      My own expectations of Kavenaugh are similar to what we saw of Kennedy, but maybe not quite as dependable. Kennedy was of course unpredictable, but I did feel I had a somewhat of an understanding of Kennedy’s makeup that kept me from being too surprised at him, even though not always happy with it. Kennedy and I both grew up in the same area in not too different eras, He was born in ’36 in Sacramento, I grew up in smaller communities not too far away like Chico 20 years later.

      Kavenaugh of course grew up in a completely different environment and although more privileged, in a modest gentrified upbringing, 1 like Kennedy’s background, much different culturally and geographically.

      But the fact that Kavenaugh wasn’t just going to sit back and take when the commie bastards are trying to steal an election, or the country, gives me some hope.

      Sebastian, you do know that Bush actually won in 2000, and 2004, just like Biden did in 2020, an Trump did in 2016 don’t you?

      Election trutherism is a nasty disease, and we keep getting successive waves of it just like covid with no completely effective cure.

      1. When did McConnell slip this Kavenaugh character onto the Court?

        Illiterate clingers are among my favorite culture war casualties.

        1. That Kavanaugh was “slipped onto the Court” is as bizarre a claim as that he “incited a mob”. Mental defectives like you two are not my favorite anything.

          1. Could someone who not a dullard try to explain this to Gandydancer?

      2. Harris behaved unethically in 2000 because Bush was initially in the lead and so her strategy was simply to run out the clock. Had she performed her duties like Rafensberger did in 2020 then Gore would have won. Bush then lied America into an asinine war while mismanaging pretty much every major event that happened on his watch. Comey and McCabe are incompetent Bush Republicans that accidentally threw the election to Trump in 2016.

        Kavanaugh will never be half the judge his mother was.

        1. Don’t retcon us. Bush was in the lead because he’d won the election, so Harris called it, as was her job. Then the Dems began trying determinedly and illegally to squeeze extra votes out from (D)-dominant areas only.

          Still waiting for any evidence of Kavanaugh inciting mobs.

          1. Wow, so you believe Trump requesting recounts was an attempt to steal the election?? I assume that means you believe Trump has disqualified himself from future elections??

            Roberts and Kavanaugh and ACB should be disqualified from being on the Supreme Court for using their lawyerly talents to help George Xi Bush steal an election and then lie America into a war while making China great again.

    2. “Incited a mob”?

      I despise BK, but you are just a loon.

      1. Kavanaugh is a Bush loyalist that relished his opportunity to stab Trump in the back…Trump’s an imbecile for appointing so many Bush loyalists to important positions…Jeb might as well have been president.

  7. He’s…he’s doing this on purpose, right? No way a human can be that blind to his own actions.

    1. Yeah, probably at this point it’s just to make all the haters go batshit crazy. Seems to be working splendidly.

      1. You act like a fool to own the libs, you’re still acting like a fool.

        See: the rule of goats.

        1. Literalists:
          Often
          Lonely

      2. “Haters” is a juvenile locution, the use of which only makes YOU look bad.

        It’s OK to hate the despicable, and we all do it. The only disagreement is about who is despicable.

    2. I really do think he is that blind to the irony. Plus, did you catch this delusion of grandeur? “Feldman also fantasize about how young conservative lawyers (present company no doubt included) will perceive Gorsuch and Barrett.”

    3. I can’t tell for sure whether you’re sincere or blind, but you are certainly evidence that it might happen.

  8. I thought “fan fiction” referred to sci-fi readers writing stories based on published novels or other sources like movies, etc.

    That doesn’t seem to fit speculation as to the motives of Justices, whether written by Feldman or Blackman. Why Josh thinks his conjectures are more worthy than Feldman’s is not clear. (Well, actually, it is , but I’m being polite.)

    1. It is rather humorous that Feldman thinks the key to Gorsuch is encouraging his trait of consistency, when of course Feldman’s definition of consistency is consistently voting for what Feldman wants. While of course Goresuch has his own internal idea of what is consistent that is completely foreign to Feldman.

      While I’m probably going to agree with Goresuch 85% of the time, I’ll try not to assert that anyone’s idea of intellectual consistency is anything more than than just what they really want

      1. Nevertheless I do think that Blackman’s point that consistency, though not an end in itself, is a predictible effect of formalism, is a reasonable one.

        And thus if a formalistic Judge finds himself arriving at a conclusion that seems inconsistent with a previous effort of his, then that should at least set off a little alarm – have I really got this right ?

      2. ‘consistently voting for what Feldman wants’ is not Feldman’s definition of consistency – rather if Gorsuch is the robotic textualist he aspires to be, he will come down against what Feldman wants less often.

        This tactical analysis is quite clear. But somehow you missed it in your ‘other side bad’ mania.

        I’ll try not to assert that anyone’s idea of intellectual consistency is anything more than than just what they really want.
        The whole point of intellectual consistency is that it’s not just being outcome oriented. You can’t twist words to make everything mean legal realism.

        1. Lee Moore is right.

          The whole point of CLAIMING intellectual consistency is TO CLAIM that [you are] not just being outcome oriented.

          FIFY.

          1. So even when decisions are not aligned with the preferred outcomes of a Justice, that’s just cover for future decisions that will be so aligned?

            You do see you’ve created a system immunize from falsifiability, yes?

  9. Creativity is not a trait judges should emulate.

    I don’t think “emulate” is the right word here. “Display” maybe.

    Judges should be boring, and not surprise anyone.

    Agreed. Ideally, judges should be replaced by algorithmic judge-bots. Sadly we don’t live in an ideal world, but judges should at least strive to emulate (sic) judge-bots. The ideal judge-bot should be designed with a photo of Breyer on the desk – as a terrible warning of what to avoid.

    If a judge is crafting arguments the parties did not present, then the judge has abused his discretion.

    No. The judge-bot should follow the tramlines of the law, not the tramlines of the parties’ arguments. Obviously one would hope that at least one of the parties would raise the correct legal argument for the judge to confirm, and maybe the judge should encourage them to do so with questions. But if they’re both determinedly arguing the wrong thing, I don’t see why the judge shouldn’t point this out.

    Of course a judge is much more likely to be mistaken if he goes off piste with an argument that has not been briefed, and Lord knows we do not want to encourage people with already bloated egos to inflate them further. A humble judge, though related to a unicorn, is a good judge.

    But in extremis if Daughter A insists that she should get the inheritance because black is white, and Son B insists he should get it because black is pink, the judge should deterine the case on the basis that black is black. I don’t think this could reasonably be described as being “creative.”

    1. Ideally, judges should be replaced by algorithmic judge-bots.

      I’m pretty sure that idea would be quite unpopular. We like humans with their irrationality, flaws, and variety to judge humans (or a human-written constitution).

      But yeah, a judge should sua sponte raise points the parties missed if the law so requires.

      1. I’m pretty sure that idea would be quite unpopular. We like humans with their irrationality, flaws, and variety to judge humans (or a human-written constitution).

        Sure, if the judge’s human irrationality and flaws lead to him arriving at the conclusion that we win, when we should have lost. Otherwise not so much.

        That’s why – for things that really matter, like whether the receiver caught the pass or not, even grumpy old soaks are willing to accept the TV review verdict (even though it takes too long*.) Whimsical appreciation of the irrationality and flaws of the human officials is quite limited when you can see frame by frame that they got it wrong, and your team just lost 21-18 because of it.

        The argument against judge bots is that we don’t have the technology. Not that we actually prefer court judgments to have a bit of human frailty and whimsy stirred in.

        * the argument that for the law courts, “a judge bot would take too long, because we human judges really hop to it” is not gonna fly

        1. ‘would you rather a machine that finds as you wish or a human that doesn’t’ isn’t the question. The question is independent of outcome. And I think in that case we’d prefer to be judged by our peers.

          This isn’t the 1960s; technological utopianism is quite rare. Best you can do and keep public support would be a human-machine teaming situation.

    2. No, not “display”. That leaves out the element of approval. “Emulate” has acquired (through computer applications) the semantic load of being only a synthetic copy, so there’s that. Still, his usage is correct.

      And your inheritance example is not on point. What Blackman is suggesting not be done is inventing less obvious claims than that black is black, particularly when the parties are not being nearly so inventive as the judge. Don’t strawman him by assuming meanings from your own supply.

  10. “Publish or perish” is no myth, and the more this prof writes the better he gets.

    This old geezer really enjoyed this essay.

    1. In the context of hoping to land a position at a strong law school, the rule in this case is ‘publish and perish’ — the more he writes, the less likely a promotion will occur.

      (A move to a Regent, Liberty, or Ave Maria could occur, but that would be rearranging the chairs on the U.S.S. Clinger as it sinks.)

      1. I have to assume Josh had some hope to at least be considered for a district judge spot by the Trump administration. (My sense is that home-state Senators still hold considerable sway over district judge noms, so it may be safe to assume that neither Cruz nor Cornyn had Blackman near the top of their lists.)

      2. Should we make a game out of downing a shot every time the Reverend announces the future victory of his church, with no other discernable content to his post, we would very shortly get very drunk indeed when reading these threads.

  11. Gorsuch, Kavanaugh, and Barrett have a different mission ahead of them. Rather than establishing a movement, they will maintain and expand it.

    The goofball has spoken.

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