The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.