Naked mud wrestling–and a challenge to Professor Kerr

Professor Orin Kerr and I got into a “naked mud wrestling match” according to Scott Greenfield over at Simple Justice. We were arguing about whether Rodriguez v. United States (a case from the District of Nebraska) was worth consideration by the Supreme Court. Kerr thought it was, and I thought it wasn’t. See the exchange in the comment section between the good professor and yours truly regarding Scott’s post entitled Puppy Time At The Supreme Court. Then read SHG’s follow up post today entitled Doctrine v. Realism: Naked Mudwrestling At Its Best.

I don’t know about Professor Kerr, but I will not wrestle him in the nude. But, I would take him on if I could wear my tighty whities.

Photo credit:

Photo credit:

So, if Kerr is up to it, I offer to wrestle him in the mud at the venue of his choice. Perhaps at the GW Yard near where Professor Kerr teaches law.

Photo credit: George Washington University, pursuant Creative Commons Attribution 3.0 Unported license. The image has not been changed from the original. (George Washington's University Yard, Lerner Hall, Stockton Hall, and the Burns Law Library, respectively._

Photo credit: George Washington University, pursuant to a Creative Commons Attribution 3.0 Unported license. The image has not been changed from the original. (George Washington’s University Yard, Lerner Hall, Stockton Hall, and the Burns Law Library, respectively.)

Come on Orin, whad’y say?*


*Professor Kerr is a smart guy who is highly respected. I hope he has a sense of humor. By the way, if he gets to see me in my shorts, I dare him not to laugh.


7 responses

  1. I have not had the opportunity to contemplate the intelligent comments included in this mud fight. However, as a general point, I have long thought that the practice of looking for or determining that there are circuit splits and thus cert should be granted is too narrow and arbitrary. I thought this again yesterday when – apparently – the lack of circuit splits was considered one reason why the Supreme Court did not grant cert. in the numerous same-sex marriage cases. The commentators noted that the parties agreed that cert. should be granted – so that must have been one example when a circuit split was not necessary for the parties to argue in favor of cert. The parties then apparently were surprised when cert. was not granted, even though they all had agreed and fully expected that cert. should be granted, even with no circuit splits.

  2. It is far too narrow and arbitrary, which is why Supreme Court Justice is now a part-time job. What it means is that the first litigant who approaches a court is liable to be deprived of the benefit of the Constitution and rule of law.

    As for SSM, the Scalia wing really, really, really, really didn’t want to decide that one. It is a far cry from the day when Chief Justice Marshall lamented:

    It is most true that this Court will not take jurisdiction if it should not but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.

    The Constitution is no match for judicial discretion. Scalia’s “best judgment” was to punt. He may be hoping and praying for a circuit split….

  3. There is an 8th Cir case out of NE in 2006 upholding a constitutional bar to same sex marriage, though SCOTUS probably treated it as not a conflict because it predated 2013 SCOTUS decisions and flood of subsequent Circuit decisions. Some commentators are suggesting that given panel 6th Cir may create the split and that is what Scalia et al hope for. Who knows, Vatican is less mysterious.

  4. Well, judge, welcome to Kerr’s World. It is a world that has one simple rule: Never, ever, challenge Kerr’s legal opinion as he is The Smartest Guy In The Room. There is more where this came from. Just trying disagreeing with Kerr on the VC with a large WaPo audience. But be prepared for snarky, ad hominem, vitriol from Kerr, especially if he knows that your position has merit.

    Be well.


  5. dpd,

    When I was much, much younger, I frequently shot my mouth of in places that sold 3.2 beer and provided pool tables. That’s the reason why I have an appliance where my lower teeth used to be. I like to think I can take a punch and, randomly, land one too.

    Thanks for your kindness.

    All the best.


    PS Entitled “Patience, Pool & 3.2 Beer,” the following video reminds of me of my callow youth:

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