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| Judge Kevin C. Newsom |
It's a proposal he acknowledged in his May concurrence that many would "reflexively condemn as heresy."
Judge Newsom said that he had turned to AI when weighing a dispute between an insurer and a landscaper whose outcome rested on the ordinary meaning of the term "landscaping." After "languishing in definitional purgatory for a while," the jurist wondered whether ChatGPT could shed some light on that question, he said.
"Kevin, that is positively absurd," Judge Newsom wrote that he originally said to himself about the idea. "But the longer and more deeply I considered it, the less absurd it seemed."
Because large language models are trained on large quantities of data that capture how people use language in their everyday lives, the programs can offer meaningful insight into the ordinary meaning of terms, the judge explained.
"ChatGPT's explanation seemed more sensible than I had thought it might — and definitely less nutty than I had feared," Judge Newsom wrote of his experiment's results.
His concurrence isn't that surprising given that Judge Newsom is an innovative judge, a committed textualist and a talented writer known for penning "colorful" and "vibrant" opinions, according to attorneys who know him.
"Judge Newsom is certainly a colorful writer," according to Dechert LLP associate Brian Kulp, who clerked for the judge. "His intellectual curiosity and love for the law often spawned interesting concurrences."
"He does not bind himself to stodgy legal writing conventions, but instead injects a liveliness into his writing that engages any reader, whether a lawyer or not," echoed Bradley Arant Boult Cummings LLP partner Matthew H. Lembke, who worked with Judge Newsom at the firm for 10 years.
One of the nation's foremost appellate practitioners even told Lembke that Judge Newsom is the best writer he's encountered in 50 years of practice because the judge "brings a novelist's sense of style to legal writing," Lembke told Law360.
Judge Newsom writes "in very personal terms and with vibrant language," Lembke added. "I have never seen a lawyer devote more time to ensuring that his writing is clear and polished."
Several of Judge Newsom's concurrences have garnered attention since he was nominated to the Eleventh Circuit by then-President Donald Trump and confirmed by the U.S. Senate in 2017.
In a concurrence to a decision upholding the prison sentence of a man with a history of threatening judges, Judge Newsom called the Eleventh Circuit's "crazy quilt" of sentencing precedents "pretty hopelessly conflicted."
After illustrating how the court had alternated between classifying impermissible-factor challenges as substantive and procedural, Judge Newsom called the rules the court uses to determine if a defendant has properly preserved his sentencing challenges "a grab bag."
"There's a little something in it for everyone," Judge Newsom said. "Based on existing precedent, a party can argue — and a panel might well conclude — pretty much whatever it wants concerning whether a sentencing-related challenge was properly preserved for appellate review."
In another concurrence in a case over whether a 34-foot cross in a city park violated the U.S. Constitution's establishment clause, Judge Newsom wrote, "The [Supreme] Court's establishment clause jurisprudence is, to use a technical legal term of art, a hot mess."
Judge Newsom's opinions "are written in a conversational tone — chock-full of em dashes and fun colloquialisms — that engages lawyers and nonlawyers alike," Kulp said.
The judge hasn't limited his colorful commentary on other jurists' rulings to his concurrences. He lambasted the U.S. Supreme Court's current reliance on historical "tradition" in a speech hosted by the Harvard Journal of Law & Public Policy.
"Traditionalism gives off an originalist 'vibe' without having any legitimate claim to the originalist mantle," Judge Newsom said, adding that historical evidence that post-dates a provision's adoption is "positively irrelevant."
"The road to tradition, I fear, may be a road to perdition," the judge quipped.
However, Judge Newsom isn't just a talented writer. He's also an excellent judge, according to attorneys.
"He's brilliant and extremely fair and careful, studious," said Jon Cohn, a partner at Lehotsky Keller Cohn LLP who attended Harvard Law School with Judge Newsom and worked with him during two clerkships, one at the Supreme Court.
While there are judges on both sides of the aisle who might disagree with particular opinions of Judge Newson, "I would put my money on Kevin being correct," Cohn added.
"He is willing to examine both old doctrines and new issues with an intellectual rigor and intense curiosity," Lembke said.
Judge Newsom is a "model" judge who doesn't care about outcomes but does everything in his power to ensure that litigants on both sides get a fair shake, according to Kulp, who added, "He is remarkably diligent and faithfully follows precedent."
In fact, Judge Newsom is a committed textualist who always looks to the plain meaning and original intent of the law, these attorneys say.
In yet another concurrence — to a majority opinion he wrote affirming a deportation order — Judge Newsom castigated the same appellate court he sits on for its approach to the Chevron doctrine in a previous, precedential case.
In that case, the court employed "no assessment of ordinary meaning, no consideration of the canons, no analysis of statutory structure — no nothing," Judge Newsom fumed.
The judge has possibly written more "insightful" opinions on original public meaning and textualism than almost any other judge, according to Kulp.
"I'm unabashedly a plain-language guy," Judge Newsom admitted in his recent concurrence concerning the use of AI.
The judge's lightheartedness is also one of Judge Newsom's defining traits, according to Kulp, who said the judge has a pingpong table in his chambers and holds a standing doubles game with his clerks.
"Judge Newsom may just be the most fun and down-to-earth judge there is in the federal judiciary," Kulp said.
Before joining the federal judiciary, Judge Newsom spent a decade as a partner at Bradley Arant, where he chaired the firm's appellate group.
He handled mainly civil and commercial disputes involving pharmaceuticals and medical devices, construction, securities and bankruptcy, according to a questionnaire he filled out for the Senate Judiciary Committee when he was nominated to the bench.
He represented drugmaker Wyeth LLC in multiple cases over whether the maker of name-brand pharmaceuticals can be held liable to a plaintiff who used a generic-equivalent drug made by another company, he told the Senate.
He also represented HealthSouth Corp. when it sued Ernst & Young, which had been its independent auditor while the healthcare company's former chairman and CEO carried out a $2.6 billion fraud.
And he defended GlaxoSmithKline against a lawsuit from the state of Alabama that claimed that 73 drug companies had fraudulently inflated the prices of prescription drugs for the purposes of Medicaid reimbursement, according to his Senate questionnaire.
"Judge Newsom was an ideal colleague," Lembke said. "You always knew that he would produce work on time that was of the highest quality. He also was generous in his willingness to offer his input on difficult legal questions being confronted by his colleagues."
"We and our clients benefited from harnessing his energy and enthusiasm in tackling really tough legal issues," Lembke added.
Judge Newsom also took on pro bono cases while in private practice, winning a new trial for a Florida death-row inmate based on newly discovered evidence and reviving a Nigerian citizen's habeas corpus petition in his removal case, he told the Senate.
Before signing on at Bradley Arant, Judge Newsom spent four years as Alabama's solicitor general, handling three of the four cases he's argued before the Supreme Court during that time.
He represented the state of Alabama in a case over whether Title IX implies a private right of action to address retaliation for complaints of sex discrimination, and in another dispute over whether Section 5 of the Voting Rights Act required preclearance of the state Supreme Court's judicial review of state election laws.
He served as counsel of record on 16 amicus curiae briefs, and played a supporting role in 26 other matters at the U.S. Supreme Court, he told the Senate.
Judge Newsom was an associate at Covington & Burling LLP prior to his time in public service. He's also taught at Georgetown University Law Center, Vanderbilt Law School and Samford University's Cumberland School of Law.
He clerked for Ninth Circuit Judge Diarmuid F. O'Scannlain and Justice David H. Souter, according to his Senate questionnaire.
And he may find his way back to the Supreme Court. The judge was placed on then-President Donald Trump's shortlist of potential Supreme Court nominees, a list that included now-Justices Amy Coney Barrett and Brett Kavanaugh.
Cohn said he'd love to see Judge Newsom on the high court someday.
"Not just because he deserves it, but because I think he'd be a fantastic justice who would be impartial but also somewhat predictable, not making up theories that just suit his own personal policy preferences," Cohn said.
"He would interpret the law as it is meant to be interpreted, and he'd render decisions regardless of whether that outcome might please people who look only at outcomes," he added.
--Additional reporting by Madison Arnold, Sam Reisman and Dorothy Atkins. Editing by Nicole Bleier and Jay Jackson Jr.
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