All eyes are on the Kavanaugh confirmation hearing this week. Our eyes are among them, and we offer one related tidbit to Supreme Court Brief readers: the story of a book about judicial precedents that is getting some attention. Also, an update on our chronicling of lawyers who represent themselves in Supreme Court arguments. And a peek at a new buzz-generating book about the justices. Thanks for reading. Feedback is welcomed at [email protected] and [email protected].

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The Book on Precedent That Binds Kavanaugh and Gorsuch

The importance of precedent was front and center as the Brett Kavanaugh confirmation hearing got underway on Tuesday.

Sen. John Cornyn, R-Texas, held up his copy of The Law of Judicial Precedent, a 2016 treatise that was co-authored by 12 federal and state appellate judges—including Kavanaugh and Neil Gorsuch—and said he looked forward to Kavanaugh's take on it. Sen. Mike Lee, R-Utah, also cited the book in his opening remarks.

As Sen. Dan Sullivan, R-Alaska, put it on NBC's Meet the Press on Sunday, “Like Judge Gorsuch, now Justice Gorsuch, he actually wrote a book on it. He's been very focused on it.” He mentioned the book in the context of handicapping whether Kavanaugh would vote to overturn one of the high court's most controversial precedents, Roe v. Wade.

So here's what we know about this book that links Kavanaugh and Gorsuch together, along with other appellate judges who co-authored it, including Sandra Lynch, William Pryor Jr., Jeffrey Sutton, Diane Wood and the now-retired Alex Kozinski.

➤➤ Legal writing expert Bryan Garner (above, right) was the coordinator and editor on the joint project. In a September 2 letter to the Senate Judiciary Committee, Garner stated that in the three years it took to write and author the book, he found Kavanaugh to be “even-handed and fair-minded” throughout the three-year writing project, and “as devoted as any other judge I've known to the doctrine of precedent.”

➤➤ Garner, who attended the confirmation hearing Tuesday to show his support, recruited the judges after his longstanding co-author Justice Antonin Scalia said in 2012 that a book on precedents would be “impossible to research” properly and declined to help write the book.

Even with 12 judges replacing Scalia for the task, the book took a long time to write, with the authors providing frequent editing suggestions and revisions before signing off on the contents. Unfortunately, the authors agreed early on that they would not attach their names to the chapters they wrote, so it is impossible to tell which judges wrote which parts.

➤➤ The book mentions Roe v. Wade in a glossary that describes “superprecedent” as a precedent that “defines the law and its requirements so effectively that it prevents divergent holdings in later legal decisions on similar facts or induces disputants to settle their claims without litigation.”

➤➤ The entry goes on to say, “Roe v. Wade has been called a superprecedent because it has survived more than three dozen attempts to overturn it and has been relied on in decisions protecting gay rights and the right to die.”

➤➤ The 910-page book cites more than 2,500 cases to illustrate the intricacies and value of precedents and stare decisis in the judicial system. While underscoring the importance of precedent, the book also includes chapters on when and why precedents can or should be overruled.

➤➤ “Stare decisis does not prevent a court from overruling a … precedent that on reconsideration it finds to be plainly and palpably wrong,” the book states.

Garner said he was proud both Gorsuch and Kavanaugh helped co-write the book before they were nominated to the high court, adding that Democratic or Republican presidents could have considered nominations from the ranks of the book's authors. “It was very much a bi-partisan effort,” Garner said.

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Numbers Game

At Neil Gorsuch's Supreme Court investiture last year, Chief Justice John Roberts Jr. apparently recognized the newcomer as “the 101st associate justice,” just as he called Elena Kagan the “100th associate justice” in 2010.

But the justices apparently both noticed that the numbering was different, and were miffed.

Sonia Sotomayor, the next most recent newcomer, had been recognized as “the 111th justice,” without the qualifier as an associate. Justices apparently keep track of such things, and some wondered why Roberts was “messing with my number.”

This anecdote, among dozens of others, is likely to make David A. Kaplan's new book, titled “The Most Dangerous Branch,” something of a page-turner for Supreme Court aficionados. Kaplan, a longtime legal writer (he wrote for the National Law Journal from 1983 to 1989), says he interviewed a majority of justices as well as 65 law clerks for the book, and it's clear some of them talked quite a bit.

For more morsels from Kaplan's book, take look at this story that was posted on Tuesday.

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Arguing Your Own Case: An Update

Last week we wrote about the bold decision made by Theodore Frank to represent himself in an upcoming oral argument on October 31. Titled Frank v. Gaos, the case is an important test of “cy pres” settlements in class actions—an issue that Frank has litigated for years.

But it is still exceptionally rare for a lawyer to represent himself or herself before a court that values detached, dispassionate advocacy. When he was a top-notch Supreme Court advocate before joining the bench, John Roberts Jr. was known for his unflappable demeanor. In 2000, Roberts told this writer (Tony here) “Impassioned rhetoric doesn't work with the Supreme Court. If it did, I'd become impassioned.”

Frank is aware of that, and said he asked numerous Supreme Court advocates whether he should or should not argue the case himself. “What I heard was, 'Yes, you should do this. The justices know that this is your issue, they want to hear from you.'”

In our article on Frank's decision, we added a historical note about the last time an oral advocate at the Supreme Court was also a named party. “Best we could tell,” we wrote, it was the 2002 case Christopher v. Harbury. Jennifer Harbury, a Harvard Law School-trained human rights attorney in Texas, represented herself in arguing that that U.S. government officials deceived her about the CIA's role in the torture and death of her husband, a Guatemalan rebel leader.

Well, it turned out that “best” was not good enough. Who can forget the 2004 case Elk Grove United School District v. Newdow. Respondent Michael Newdow (above), a physician with a University of Michigan Law School degree, argued in the case, an unsuccessful challenge to the words “under God” in the Pledge of Allegiance.

An atheist, Newdow asserted that on Establishment Clause grounds, his school-age daughter should not be subjected to the religious reference in a public school. Why did Newdow argue the case himself? “I want an atheist. I want me,” he said at the time. “They're stuck with me.”

Watching the Kavanaugh proceedings? Shoot us a note with your thoughts. We'd love to hear your observations.

—Tony and Marcia