Bench Memos

Law & the Courts

Law Professor to Kavanaugh: ‘Become the New Kennedy’

The Left’s “good cop, bad cop” campaign to cajole and intimidate the conservative justices that it regards as conceivably “gettable” in Dobbs v. Jackson Women’s Health Organization is going to become incredibly intense over the next few months or so. Harvard law professor Noah Feldman’s Bloomberg column yesterday titled “Kavanaugh Is the Last Hope for Abortion Rights” is an early—and, in my judgment, especially implausible—entrant in the “good cop” category.

Feldman’s pitch to Kavanaugh isn’t subtle: Kavanaugh should “decide to become the new Kennedy,” as that is the “only way for him to become a significant justice on the court as currently configured.” “As the swing justice, he would often have the power to decide the law on his own.” Yes, Kavanaugh’s ugly confirmation battle means that “the reputational benefits that Kennedy accrued from his swing justice position”—tributes from liberal law professors, “active admiration and appreciation” from law students—“may be harder for Kavanaugh to obtain.” But Kavanaugh’s “best opportunity” to begin “to achieve something like a sea change in how he is perceived” by liberals is to “redefine himself by reaffirming [Planned Parenthood v.] Casey as binding precedent.” Sure, “even if [Kavanaugh] does pull a Kennedy, liberals might be slow to praise his jurisprudence.” But unless Kavanaugh wants to “accept a kind of permanent, constrained right-wing existence,” he ought to “become the new Kennedy by saving Casey” and by providing “one of the most electrifying moments on the court since the 1992 decision itself.”

As Josh Blackman, who acknowledges that he has been “quite harsh” on Kavanaugh, observes, “this pulp from Feldman is far more demeaning than anything [Blackman has] written.” Feldman, Blackman points out, “talks about everything that [Feldman imagines] will go through Kavanaugh’s mind, except the law!” and thus “truly views Kavanaugh as this Machiavellian, power-hungry, affection-desiring, empty-suited jurisprude.” It is difficult to imagine more insulting cajolerie than Feldman’s.

Like Blackman, I believe that there is zero chance that the craven opportunistic gamble that Feldman invites Kavanaugh to make would pay off. Further (as Blackman also observes), liberal academics never actually respected Kennedy. They pandered to his vanity when they needed his vote, but were eager to jettison him as soon as possible. Perhaps the clearest illustration of this point is the infamous spring 2016 blog post (“Abandoning Defensive Crouch Liberal Constitutionalism”) by Feldman’s HLS colleague Mark Tushnet. Anticipating that Hillary Clinton’s election would usher in a new era for the judiciary, Tushnet culminated his call to judges to “take aggressively liberal positions” by declaring “f*** Anthony Kennedy”—except that Tushnet spelled out the expletive.

More importantly, I expect that Kavanaugh’s jurisprudential principles, including the discussion of precedent that he set forth in his concurrence in Ramos v. Louisiana (2020), will lead him to reject Casey and that he will strive in Dobbs, just as in other cases, to do his constitutional duty, not to aggrandize his own power or to feed his ego.

Relatedly: I’m also surprised by Feldman’s assertion that Chief Justice Roberts “has already signaled that he is likely to join the court’s three remaining liberals in voting to sustain the Casey precedent.” That strikes me as a serious overreading of the Chief Justice’s concurring opinion last year in June Medical Services v. Russo. The Chief Justice emphasized that the parties “agree[d] that the undue burden standard announced in Casey provides the appropriate framework to analyze Louisiana’s law” and that “neither party [had] asked us to re-assess the constitutional validity of that standard.” So I don’t see how his opinion has any bearing on the precedential force of Casey in Dobbs, where the state of Mississippi is urging the Court to overturn Roe and Casey. And, as I will explain in a separate post, I believe that the Chief’s jurisprudential principles should lead him to reject Roe and Casey.

One final small point: Feldman reads a passage in Justice Scalia’s dissent in Lawrence v. Texas (2003) as “blam[ing] … law professors as a collective for a transformational decision in constitutional law.” But Scalia’s reference was to the “law-profession culture,” not to the law-professor culture. The latter is certainly part of the former, and I don’t doubt that Scalia would have agreed that law professors share much of the blame, but the passage itself doesn’t support the particular point Feldman makes.

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