She had open questions about what standard would replace Smith, but she explained that it was not necessary to reach such questions now. And Barrett's FultonВ concurrence, which Feldman cites, was not premised on some sort of judicial ingenuity. Then-Professor Barrett ridiculed Chief Justice Roberts's mandate-as-a-tax saving construction. I have yet to see anything from Justice Barrett's brief time on the bench suggesting that she would make stuff up. If a judge is crafting arguments the parties did not present, then the judge has abused his discretion. Judges should be boring, and not surprise anyone. 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. That they reach different results ( Bostock for example) does not mean they have different legal philosophies.

I view Gorsuch and Barrett, as well as Kavanaugh, as formalists. Consistency is a virtue of formalism, but not an aspect of the doctrine. Rather, formalistic doctrines like originalism and textualism tend to yield consistent results. Conservatives do not favor consistency as an end unto itself. In this sense he is a good son of Reagan-era conservatism, which talked the talk of revolution. Gorsuch, by contrast, wants to tear down the doctrinal edifice and replace it with something new and logically consistent. (She has already hintedВ 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. That means she can put herself into a complex area of legal doctrine and craft a creative solution from existing legal materials. In lawyer's terms, Barrett is a more subtle doctrinalist than Gorsuch. She is also a credible, competing heir to Scalia, having clerked for him and written several academic articles about his legacy. Justice Barrett seems to be less consistency-obsessed than Gorsuch. 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. By contrast, Justice Barrett does not insist on consistency, but instead uses doctrine to craft creative solutions: Justice Gorsuch insists on consistency, rather than deferring to conservative outcomes. 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.ДЇeldman imagines a divide. These paragraphs seem like they were written for a different column about Barrett, but Feldman lumped them onto the Gorsuch column. Suddenly, Justice Barrett makes an appearance. But the last five paragraphs take a very different turn. Gorsuch's activism means he is open to future arguments for consistency that liberals will doubtless direct toward him.ДЇeldman's column really should have ended here.

Feldman writes:Д«ut there will be other issues where Gorsuch's commitment to consistency may lead him into surprising philosophical neighborhoods, as in the Bostock case. Whereas Kavanaugh can be manipulated by liberal accolades, Gorsuch can be affected by calls for consistency. Still, Feldman can't help but engage in a bit of Gorsuch fan fiction. As flawed as Bostock was, Gorsuch had the courage to follow his convictions to a very precarious place. Perhaps the trait I admire most about Gorsuch is his utter lack of concern about what others think of his work. If so, I doubt this transparent effort will pay dividends. Perhaps Feldman is trying to get on Gorsuch's good graces. The Harvard Law professor penned a lengthy, fawning column about Gorsuch's scholarly bona fides. By contrast, Feldman seems to hold Justice Gorsuch in very, very high esteem. Feldman apparently holds Kavanaugh in very, very low esteem. He views Kavanaugh as a feckless naif who can be plied by liberal elites. In August, Noah Feldman wrote a bizarre column about Justice Kavanaugh.

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