Ten days ago, Harvard Law School professor Noah Feldman wrote this remarkable valentine cum fan fiction to Aspiring Professor of Reasonable Swing Conservatism Brett Kavanaugh:
The risk for Kavanaugh is that if he becomes the swing justice he might lose his friends on the right without gaining any friends on the other side. In a worst-case scenario, that could leave Kavanaugh metaphorically friendless. That is a difficult place for a Supreme Court justice to be, given the isolating nature of the job. It would be doubly difficult for someone as outgoing as Kavanaugh, who thrives on social interaction.
Liberals who want Kavanaugh to take up Kennedy’s mantle need a way to send him the message that if he occupies the center, his jurisprudence will be taken seriously and praised notwithstanding his confirmation hearing. In a polarized political atmosphere, sending this message is tricky, to say the least. No one can confidently guarantee how campus politics will interact with constitutional and national politics. . .
In the history of the Supreme Court, there are a number of turnarounds much more remarkable than the one Kavanaugh has the chance to pull off. In the immediate aftermath of his own rushed confirmation process in 1937, Justice Hugo Black was revealed to have been a member of the Ku Klux Klan. He redeemed himself by becoming a staunch supporter of striking down segregation as unconstitutional.
His vote in Brown v. Board of Education alienated some old friends in Alabama. But it helped make Black into a constitutional hero and giant, and turned his one-time Klan membership into a footnote rather than a defining aspect of his judicial legacy.
Kavanaugh is a student of the Supreme Court as an institution and of the justices as human beings who operate within it. He knew and knows Kennedy intimately. In Thomas, he can see the costs of choosing to accept a kind of permanent, constrained right-wing existence.
If Kavanaugh chooses to become the new Kennedy by saving Casey, it will be one of the most electrfying moments on the court since the 1992 decision itself. It will immediately quell voices on the left talking about court-packing. And who knows? It might even turn the drama of Kavanaugh’s confirmation hearing into a footnote.
The whole thing — all 2,000 words worth — has to be read to be believed. It basically assumes that Brett Kavanaugh’s longs to be invited back to teach occasional classes and give prestigious lectures at fancy law schools, so that liberals will say nice things about him, and that he wants this so very much that he will betray the movement that put him on the Supreme Court to overturn Roe v. Wade, either explicitly, or by hollowing it out to the point where it’s no longer relevant to anything (The SCOTUS very rarely explicitly overrules its own precedents. For example Plessy v. Ferguson, the case that established the principle of “separate but equal” that was the legal key to the institutional structures of Jim Crow, has never been overruled.)
So how’s this project going anyway?
A day after the Constitution-flouting Texas anti-abortion law went into effect, a divided Supreme Court ruled on Wednesday that it won’t block the law before it can grapple with a concrete case that tests it in practice. The five most conservative justices agreed to an unsigned, one-and-a-half-page opinion that said the law might or might not be unconstitutional, but that given its unusual form, which delegates enforcement to private citizens instead of state authorities, it was too legally complicated to issue an emergency injunction blocking the law. In four separate dissents, the three liberals plus Chief Justice John Roberts said the law should have been blocked anyway.
Every nonlawyer on the planet — and no doubt a few lawyers, too — is likely to read this outcome as prefiguring a 5-to-4 vote to overturn Roe v. Wade, the 1973 precedent that made abortion a constitutional right. Later this year, the court will address a Mississippi anti-abortion law that lacks the cleverly diabolical enforcement mechanism of the Texas law but is equally unconstitutional. Indeed, the day after the law went into effect and before the Supreme Court ruled, many non-lawyers who were so unfamiliar with court procedures that they didn’t know it would eventually issue a ruling on the Texas law had already concluded that they knew how the upcoming Mississippi case would come out.
That would be very rash however:
That’s a possible interpretation of the latest opinion, to be sure. But the opinion for the five conservatives explicitly denied it. “We stress,” said the justices, “that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit.” That’s lawyer-speak for saying both that the law could still be unconstitutional and that there might still be some procedural way to block its operation. For good measure, the opinion said the challengers “have raised serious questions regarding the constitutionality of the Texas law.”
These formulations indicate that at least some of the five conservatives who joined it wanted to take pains not to send the message that Roe v. Wade is sure to be overturned.
I would like to take pains not to send the message that shoving all my chips into the middle of the table means that I’m holding four aces. That would be a rash conclusion.
All of these savvy takes from Feldman, Chua, et. al. are just extreme examples of Elite Lawyer Brain.
Somebody who wasn’t so goddamned clever would probably have gamed things out like this, even before The Furious Five came right out and screamed it:
(1) Movement conservatism has spent nearly 50 years trying to overturn Roe v. Wade.
(2) Institutions like the Federalist Society exist in large part to achieve this goal.
(3) Brett Kavanaugh and Amy Coney Barrett were put on the Supreme Court to overturn Roe. Explicitly.
(4) It seems extremely likely that Roe is going to be overturned, one way or another, because an enormous amount of political capital has been expended on that precise goal.
(5) Also too, somebody paid off the six-figure credit card debt Brett Kavanaugh racked up buying baseball cough tickets cough. Something tells me that Brett Kavanaugh is a man who knows how to return a favor.
(6) Also too, Barrett belongs to a right wing trad Catholic cult and has about 17 kids.
(7) Also too . . . ah forget it Jake.