The conversation that I wish Judge Sutton would have had with one skeptical law clerk from a land grant law school

Skeptical law clerk: Judge, as you asked, I have carefully read your opinion on the gay marriage cases even though another clerk worked on it.

Judge Sutton: Thanks. What do you think?

Skeptical law clerk: Do you really want to know?

Judge Sutton: Young woman, I don’t ask questions for fun. What do you think?

Skeptical law clerk: It is very weak.

Judge Sutton:  How so?

Skeptical law clerk: I don’t know where to begin.

Judge Sutton: Pick any place and start.

Skeptical law clerk: Nobody is going to buy your reliance on that old, one sentence case from the Supreme Court.

Judge Sutton: I am bound by precedent.

Skeptical law clerk: Come on, Judge. You could reason your way around that old thing in your sleep.

Judge Sutton: Well, maybe. Go on.

Skeptical law clerk: You are swimming against the tide, and you know it Judge. Frankly, you cavalierly reject the views of the 4th, 7th, 9th and 10th Circuits. That says to me that you don’t have much of an answer to their reasoning.

Judge Sutton: But, I’m right and they are wrong. These are matters for the public to decide in their legislative halls. Ultimately, the public will get it right.

Skeptical law clerk: Setting to one side the harm to gays in the meantime, don’t you see that you are forcing the Supreme Court’s hand by creating a Circuit split?

Judge Sutton: Of course, that’s the purpose of my opinion.

Skeptical law clerk: Judge, with due respect, why would you force the Supreme Court’s hand?

Judge Sutton: To start with, that’s why we have a Supreme Court.

Skeptical law clerk: That’s cold, Judge.  Don’t you think you should exercise more restraint.

Judge Sutton: Restraint? My opinion reeks of restraint!

Skeptical law clerk: You don’t call for restraint, you call for abdication of the judicial role. Then you wash your hands of the consequences by relying on the Supreme Court! Along the way you thumb your nose at a large group of equally thoughtful judges who have gone the other way.

Judge Sutton: You are making me angry.

Skeptical law clerk: Well, you asked for it. Moreover, Judge, you are really hurting the federal courts.

Judge Sutton: What the hell do you mean?

Skeptical law clerk: Nobody would have cared if the Sixth Circuit blew up these laws.  The decision would have simply been one in a long stream of cases going the same way.

Judge Sutton: So what?

Skeptical law clerk: A true conservative would be concerned with preserving the notion that law is not politics by some other name. Your contrarian opinion will prove the opposite–judges decide cases according to their own political leanings. The fact that your opinion looks and smells one-off is proof positive of their point.

Judge Sutton: That’s B.S., but go on.

Skeptical law clerk: Judge, the Supreme Court doesn’t need the heart burn your opinion will cause. Scalia, your former boss, will go ape shit, Kennedy will write something inane, and the liberals will join him and reverse you. What’s worse, the Court’s opinion, with all the angry dissents, will be just one more reason for the public to distrust the federal judiciary.

Judge Sutton: What do I care? I’m right.

Skeptical law clerk: That’s cold Judge.

Judge Sutton: I knew you would be trouble when I hired you. That’s what I get for selecting someone from a land grant law school who was not a member of the Federalist Society. Leave me. Tell the kid from Harvard to get his ass in here.

Skeptical law clerk: OK, I’m going. One last point. You seem to have forgotten that you got your law degree, and lessons in good and practical judgment, from Ohio State.

Judge Sutton: Out!




76 responses

  1. I could not disagree with you more on the substance of this issue. On a cultural and political basis there is going to be a long and bitter resentment on what the federal courts have imposed on a vast majority of states. If a state like NY votes for SSM, then fine.

    On the law, there surely is a rational reason for a state to limit marriage to one man and one woman despite what Posner and Kennedy think.

    The only upside to this affair will be Scalia’s dissent. It will be a classic.

    Two predictions:
    1. A Muslim will win a polygamy case in federal court (probably MA) within five years; and
    2. Badgers over Corn by 21.

  2. I agree with Mr. Gamso regarding the opinion – not Judge Sutton’s best work. Granted, my legal philosophy falls more in line with Justice Stevens and Judge Woods (7th Cir) than Judge Sutton. Judge Sutton is extremely bright and a good writer. However, the dissent was better reasoned and tracked some of the facts presented at trial rgarding harm to children (as well as the gay couple). In addition, Judge Sutton argues this is a political question that should left to the judiciary. I disagree for two reasons. One, I thought gays were the type of class or insular minorities who lack the protection of the political process. Two, questions about marriage have been ruled upon the federal courts. When Loving case struck down the ban on interracial marriage, I believe two thirds of the US and 80 perent of the citizens of Virginia were opposed to interracial marriage. Childhood is finite. If the Lovings left it up to the political process, their children would always have been “bastards” or whatever derogatory term was used in the late 60s to describe children born out of wedlock.

  3. Cornhead, Most Muslims do not practice polygamy, traditional Mormons have already sued and won in Utah FDC at least on criminal penalties against polygamy. If there is a reason beyond social prejudice for the one man and one woman limit you have to come up with it since Posner demolished the rest. Agree Scalia will continue his quest to refute the rumors that he does not belong to Opus Dei. Suspect you maybe right on football game.

  4. The real damage he does is to the (already-shredded) reputation of the judiciary is in “constantly digging for quotations from and citations to previous cases to create a sense of inevitability about positions that they are in fact adopting on grounds other than deference to precedent” (Posner), further cementing the reasonable conclusion that we don’t have “judges” in America, but “proxies for the competing factions” (Curmudgeon) masquerading as judges, in the minds of the general public. If this were a one-off, we could give our federal courts a pass, but this kind of spectacle has become more the rule than the exception.

    First and foremost, at common law, Sutton is correct: Baker v. Nelson is technically “precedent,” kinda, sorta after a fashion. Cohens v. Virginia, 19 US at 400-01. It is the decision that carries precedential value, not the language of the opinion. But the reasoning is nonexistent, which is the essential vice of discretionary certiorari review, unpublished opinions, and summary rulings. We don’t know how the Court came to that conclusion.

    Problem for Sutton is, like one of Australia’s Twelve Apostles, any precedential value Baker may have had has been eroded away by the relentless tide of subsequent decisions, from Romer to Windsor. Any precedential value it once had is gone, Planned Parenthood v. Casey, and any reasonably competent jurist would know it, which is what makes Sutton look so bad. Of course, he is imposing his religious views on the Constitution. (Explain to me again why we even need judges, when a civil jury could do that.)

    This debacle again bares the fundamental problem with discretionary cert: The first guy has as much of a right to his rights as the second one, and it should not require a circuit split to resolve the question. Nobody demanded a circuit split in Elk Grove v. Newdow, mostly because several of our Justices are certifiable religious zealots. Why it required one here is unfathomable.

    I’m wondering how the Judge squares this one with his plea for judicial restraint as advocated by Bickel. As Chief Justice Marshall duly observed in Cohens, the Article III judge does not have the luxury of “exercising restraint.” A judge should decide every case, not using the constitution he wants, but the Constitution we have. Judges can’t “pick and choose” when they will abdicate the judicial role, if their oaths mean anything at all to them.

    (As an aside, a lot of the really bat-shit crazy decisions being handed down in the federal courts somehow manage to have “Harvard” stamped all over them. Whenever I see that the judge is a Harvard grad, I shudder.)

  5. “An insular minority that lacks the protection of the political process?” Please! Do you think Obama returns phone calls from Tim Cook and David Geffen?

    And what kind of money do you think the Human Rights Campaign and Lambda Legal has spent on legal fees, lobbying fees and campaign contributions? Well into the billions. Next time you see Ted Olson ask him about his fees on this issue.

  6. You can say that there ought to be a constitution that does what you want it to, but we are stuck with the Constitution we have. The other Circuits got this one right, whether we like it or not.

  7. I see your point. Judge Kopf’s imaginary law clerk makes the case for why Bickel’s passive virtues are not virtues. Someone’s rights are being denied. It does seem inconsistent.

  8. Perfesser,

    Excellent question about squaring the skeptical clerk’s views (and mine) about Bickel and passive virtues. Two things.

    Maybe the skeptical clerk doesn’t represent my views. More to the point, please remember that Bickel was speaking about the Supreme Court, and not the Courts of Appeal.

    The skeptical clerk is right to suggest that no one would have cared what the Sixth Circuit and Judge Sutton wrote if the they had not gone out of their way to create a Circuit split. In other words, if you sit on the Court of Appeals maybe you ought not rock the boat if you can avoid it–in a sense, that is a passive virtue. Deferring to the judgment of your colleagues on every Circuit to consider the question is a type of restraint and seems to me to be especially appropriate for the good of the whole judiciary. But if you personally hope to be elevated one day to the Supreme Court perhaps you are unconcerned with such things.

    Interesting! Thanks to you and the Curmudgeon.

    All the best.


  9. Judge it may be an effort to square the circle but the insular minorities rationale served for Jackson but not Frankfurter in Flag Salute Case and is embodied in the famous Carolene Products footnote, idea that deference to political process should not be visited on those doomed not to be heard or when the process is being rigged. Since law clerks have come up, Stone’s biographer says the footnote was written by his them law clerk Robert Stern, of Gressman and Stern fame.

  10. The Supreme Court could have shown a bit of leadership by ruling on the issue before hiding its head in the Circuit Court sand. P.S I was a Law Clerk with Land Grant College undergraduate and Jesuit Law School credentials. So I would approve monogamous gay weddings.

  11. Judge Kopf,

    I wish you would go through this exercise before you post to your blog. That would itself help alleviate the damage you do to the judiciary.

    An Actual Law Clerk

  12. Three points. First, the state legislatures are the entities that pass these laws. While I have no statistics, I bet the percentage of openly gay persons in the Ohio, Kentucky…legislatures is less than 5% and in some cases zero. Second, Human Rights and Lambda prob have several millions in their respective coffers. But groups backing anti gay marriage laws like the varioys archdioceses have substantially. Third, while I don’t get see Mr. Olson as often I did in 2001-04, I believe he and Boies (spelling) they take on some of these cases pro bono basis because these litigants who would need to file suit to alter the law cannot afford their usual fees.

  13. I need spell and grammar check or reading glasses. I just googled Lambda Legal and their 2012 financial report is online. It had nearly 21 million total in assets. So unless someone donated 980 million in the past 2 years, I do not believe it has billions. I have not looked the assets of the Heritage Foundation, and similar groups who maybe backing such legislation but dollars to donuts I bet it has much more money on hand.

  14. Assets on the balance sheet is way, way different than income.

    And if you don’t think the LGBT lobby is a significant force in all politics you aren’t paying attention.

  15. Judge K,

    To which I would reply: Do we have one Constitution … or twelve? Yours seems to be a distinction without a difference. (Whether you agree with the law clerk is not germane.) Allow me to illustrate.

    You may recall an old law movie, titled “First Monday in October,” Try to imagine the dialogue in Chief Justice Kopf’s chambers in re: the question of whether to grant cert in the SSM cases, which might go something like this (borrowing heavily from your dialogue above):

    Creighton Law Clerk: Setting to one side the harm to gays in the meantime, don’t you see that there is a hole in the Constitution over Nebraska [from the movie]?

    CJ Kopf: Yes, but the judiciary’s need to be perceived by the people as a fair and impartial arbiter of the law outweighs the rights of any two men. (Bickel’s “passive values”)

    CLC: Remind me again why we even have a judiciary in the first place.

    CJ Kopf: I knew you would be trouble when I hired you. That’s what I get for selecting someone from a fourth-tier (#113) law school. Leave me. Tell the kid from Harvard to get his ass in here.

    CLC: OK, I’m going. One last point. You seem to have forgotten that you got your law degree, and lessons in good and practical judgment, from the University of Nebraska.

    CJ Kopf: Out!

    I heartily agree that Judge Sutton should have accepted the considered collective judgment of his colleagues. Disagree where you have to, but agree cheerfully when their analysis is of a caliber sufficient to warrant it. What I cannot agree with is the Court’s refusal to take the first case that came up.

  16. ,Cornhead’ whatever influence feared LGBT lobby may have on Fed. politics, far from clear it has influence in most state legislatures, and if it has influence in Lincoln then we must live on different planets. In most states Catholic Conference SBC, and assorted other Conservative Evangelicals carry more weight.

  17. My friend RL doesn’t want to let go of our previous discussion. 🙂

    The only reason that it came up was that RL maligned John Cogswell (CV at, who graduated sixth in his class at Georgetown Law after getting an undergrad at Yale, while working for Bob Dole full-time. Captain in the Marine Corps who ran a 44-person firm (BigLaw for Colorado, I assume), and twice a candidate for the Senate. Nearly 50 years at bar. Not a lightweight or a flake, as RL so desperately wanted to insinuate.

    I concur with your assessment: The Court showed uncommon cowardice. I have no interest in assaying your background.

  18. Ah yes, the damage of revealing that the emperor isn’t naked but wears the same clothes the rest of us do. The danger that Justice Jackson caused when he acknowledged that the Supremes aren’t infallible because they’re perfect but because they’re “final.”

    I was once an actual law clerk to a federal district judge (the late Halbert O. Woodward, Northern District of Texas). One of the things I learned (though in fact I knew it before I took the job and never actually observed it) is that he put on his pants one leg at a time just like the rest of us.

    The judiciary, all of its members state or federal, trial or intermediate appellate or high court, male or female, they’re just like regular folks. Some are smarter than others. Some went to better schools. Some (OK, lots) have more ego. Some control their biases better than others. Some are outright dishonest. Most try their best.

    It was Justice Brandeis who said, though he wasn’t a justice yet, that “Sunlight is said to be the best of disinfectants.” His science may have been off. But it was a metaphor, and in that respect it was absolutely right.

  19. You don’t think Susie Buffett and Dick Holland would drop $10m on a ballot initiative? Anyway, the point is that federal courts have no real jurisdiction over a uniquely state issue.

  20. If marriage is a uniquely state issue (despite the fact that many federal benefits that stem from marriage), then how should have the federal courts treated interracial marriage?

  21. I was not discussing your notions of the limits of federal authority. Loving settled that.
    You are confusing Susie Buffet and Dick Holland with Joe Ricketts and the out of state money behind Sasse. Anyway I do not really believe that NE voters are that easily swayed. We are more stubborn than Iowans and there is a musical about how stubborn they are.

  22. I did not defame John Cogswell, I said his theory would not fly under current rules, but thought it would make a great law review article. Besides its the Irish not the Scots who never forget a slight.

  23. Judge:
    Perhaps a defensible, if not particularly well-written, majority opinion by Judge Sutton. I invite answers to the following two questions: first, is there a danger in expanding the definition of “traditional” marriage, given that it has existed as the bedrock of most societies for millennia, based on the experience of the scant eleven years since the 2003 decision of the Supreme Judicial Court of Massachusetts? Also, a related question: does legally allowing same-sex couples to marry invite similar arguments in favor of polygamy (or some other marital permutation?)?

  24. Robert, The idea of an unchanging model of marriage which is the bedrock of most societies is unsound anthropology and historically inaccurate.. Companionate marriage is at least a hundred years old in US. Sutton sees problems and talks of a state enacting another model but Posner has demonstrated you can not find another model in usual state statutes. Polygamy might be distinguished on the grounds, that it leads to child abuse and dependence on public assistance though one could argue those problems flow from illegality. Practical answer is that even where allowed it is not widely practiced because of costs. I lack the imagination to think of any permutation other than polyandry which solves the dependence on assistance problem. I for one do not think Design for Living was the start of a gay conspiracy to destroy marriage.

  25. According to Charity Navigator: Lambda pulls in (and then spends) about $14 million per year, and holds ~$19 million in net assets. HRC takes in $13 million per year, and holds ~$25 million in net assets. Each year they spend around 75% of this on their various programs, such as court cases and lobbying. This means, together, $20 million per year. If you assume that they have done the same for the last 50 years (they haven’t), then only now would they have reached $1 billion. Realistically, I’d guess that they’re somewhere between $200 million and $300 million lifetime, combined.

  26. And for the chosen comparison, the Heritage Foundation takes in ~$86 million per year with ~150 million in total assets.

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  28. actual law clerk,

    Fair point. As a matter of fact, I do try to examine my posts (or most of them) in a critical way before I post them. But, I am curious. Truly, curious. I would find it helpful to hear from you what damage this blog, or particular posts, have done to the judiciary.

    This is not an invitation for a fight. Rather, it is an honest invitation for you to help me improve. So if you have a moment, tell me what damage I have done to the judiciary and why you think that is so.

    All the best.


  29. I’ll concede the $20m for those two groups alone, but that’s ten times what the Catholic Church has spent on this issue in court.

    But now that LGBT groups have won, will they stop fundraising?

  30. I would suggest that Judge Sutton’s opinion is defensible from a Biblical standpoint. That shouldn’t matter.

  31. Substantial questions on translations of both Paul and Leviticus, really Christian tradition. of reading borrowed from Rabbis. Only one who swum in the waters of scholarship on Scripture knows how turbulent they can become.

  32. Actual Law Clerk:

    The late Judge Miner (CA-2) responds: “The major cause of the loss of public confidence in the American judiciary, however, is the failure of judges to comply with established professional norms, including rules of conduct specifically prescribed. In brief, it is the unethical conduct of judges, both on and off the bench, that most concerns the citizenry. Roger J. Miner, Judicial Ethics In the Twenty-First Century: Tracing the Trends, 32 Hofstra L. Rev. 1107, 1108 (2004).

    The only way to repair the judiciary’s justifiably-ravaged reputation is to fix the judiciary. From my perspective — and old hound like me has learned to value substance over image — Judge K has been trying to make a difference, and if he stirs up a few hornets’ nests, it can only be a good thing. Personally, I think he swallows his whistle too often.

    Judge Sutton deserves to be pilloried for that obviously religiously-motivated and outcome-based decision. It is a duty of bench and bar to call out absurd decisions like that, with the purpose of slut-shaming judges into compliance.

  33. Cornhead: you say, “On the law, there surely is a rational reason for a state to limit marriage to one man and one woman…” But you don’t actually proffer one. Why is that?

  34. This shots this particular post takes at Judge Sutton are largely unjustified ad hominems. The post begins with the obvious points that the opinion goes “against the tide” and forces the Supreme Court’s hand, and concludes from that that Judge Sutton has somehow turned into a petty credentials snob who can’t tolerate contrary views. I have no reason to believe that that assessment is remotely true, and this post certainly doesn’t make the case. This would be unbecoming of Maureen Dowd. Coming from a fellow federal judge, it’s childish and petty and of a piece with the “STFU” and “dirty old man” posts that have led others to question whether this blog is doing more harm than good.

  35. From the minutes of a certain GW Bush cabinet meeting

    “Ok so 6th circuit. We need someone who is reliable people. The job of a judge is to fashion a world we would like to live in.”

    “Christian, definitely.”

    “White would be nice.”

    “Loaded of course.”

    “Ok but not a loony. Someone we can sell as being thoughtful, independent, educated, all that crap. Any ideas?”

  36. observer,

    With true respect, I think you miss the point of this post. Without intending to impugn your integrity, I think that may have been purposeful.

    You do everything but grapple with the substance of my post. Instead you attack me for using ad hominems. Because you are enamored with the phrase “ad hominems,” let’s spend a moment on that subject.

    Your statement that the post would be unbecoming to Maureen Dowd flatters me in a way that I am sure you did not intend. Dowd has a way of getting under my skin too even when she is being unfair. That always tells me that she has hit upon at least a portion of the truth despite her willingness to knife folks in the back.

    As for my “STFU” and “dirty old man” posts, you are entirely right, they weren’t my best work out of over 700 posts. Sorta like Judge Sutton’s opinion in the gay marriage cases–awfully embarrassing for the weak legal reasoning, coldly insensitive to gays and their children, dismissive and therefore bordering on the disrespectful to his colleagues on the other Circuits, and self righteous. Even you must admit that it is not his best work compared with the hundreds of erudite opinions he has authored in the past.

    We federal judges make massive mistakes all the time, and when we do we ought to take tough and pointed criticism like big boys and girls. After all, that’s why we have jobs for life. Transparency requires all of us to toughen up and that applies equally to Sutton and me.

    All the best.


  37. With all the criticism directed at Judge Sutton for holding that he is bound by Baker v. Nelson until the SCOTUS tells him that subsequent decisions have overruled it, let me just quote Judge Frank Easterbrook’s dissenting opinion in United States v. Booker (yeah, the case the SCOTUS took to hold that Blakely applied to and invalidated the mandatory sentencing Guidelines):

    “Just as opera stars often go on singing after being shot, stabbed, or poisoned, so judicial opinions often survive what could be fatal blows.”

    Judge Easterbrook thus thought it was up to the SCOTUS to extend Blakey to the Guidelines — it was not up to the intermedite federal appellate courts to predict its application and ignore otherwise binding or controlling cases that had ye to be overruled.

    IMHO, the weakness in Judge Sutton’s opinion is the effort to tackle the constitutional arguments AFTER he had already held that Baker v. Nelson controls. If he was correct about that initial holding (something the SCOTUS will tell us soon enough), then there was no reason for him to write further.

  38. Da Man,

    Great point. With due respect to Judge Sutton, Baker v. Nelson had so lost any viability that he would have been laughed off the planet had he done so. But, you are right–if Baker really still controlled, the true conservative response would have been to cite it and shut up.

    All the best.


  39. I had a long response last night that apparently was swallowed up by the commenting system, so here’s the short version: Isn’t Judge Sutton’s 2011 vote to uphold Obamacare the obvious response to the hypothetical clerk that his vote in the SSM proves that he is just acting politically? In the Obamacare case, conservatives slammed Sutton for his betrayal; liberals celebrated him for his consistent commitment to judicial restraint. Looking at the Obamacare and SSM decisions together, they’re certainly consistent: Both embrace the judicial restraint that Sutton has advocated prominently in his extra-judicial writings. Given that, it seems weird to suggest that Sutton’s decision in the SSM case indicates that he’s a political hack. (Not at all out of place for Judge Kopf, granted: But weird nonetheless.) There’s also the question of whether Sutton is personally for or against SSM as a policy matter. I have no idea what Sutton’s views are on SSM, and I would guess Kopf doesn’t know, either. But my guess is that Sutton is personally in favor it, much like he was probably against Obamacare when he voted to uphold it. So it’s likely in both cases that he is voting against his personal policy preferences.

  40. Professor Kerr,

    Given your background, I am sure you know that sometimes long comments get caught up by the spam checker. I will check it out, and if that is so, I will make sure it get’s posted.

    All the best.


  41. Thanks very much for checking, RGK.

    I’d be interested in your thoughts — or those of the hypothetical law clerk — to the point about Sutton’s Obamacare vote. Also, if you have evidence that Judge Sutton is personally against same-sex marriage as a policy matter, that would be helpful ,too.

  42. Prof. Kerr,

    I would be interesting in knowing whether you think Judge Sutton’s opinion in the SSM cases is strong or weak and why you so conclude. Would you mind sharing your views on that subject?

    All the best.


  43. Prof. Kerr,

    I think Judge Sutton’s concurring opinion on the ACA case was well-written and strong. I will even go out on a limb and say I bet he could have talked Judge Martin into adopting his opinion as the majority opinion had Judge Sutton wanted to do so. But that, of course, is pure speculation on my part.

    I have no knowledge of the judge’s personal views about same sex marriage.

    All the best.


  44. RGK, to be clear, I didn’t ask if you personally found Sutton’s opinion in the Obamacare case persuasive. The law clerk argued, if I understand things, that Sutton was obligated to vote for a right to same-sex marriage because voting in a conservative direction in this case was “proof positive” that Sutton only follows his politics. The obvious response is that Sutton is famous — or, in some circles, infamous — for not voting his likely politics in the Obamacare case, which until last week was his most widely known opinion. If Sutton is to be celebrated when his approach to judicial restraint leads him to a liberal vote, but dismissed as a political hack when that same approach leads to a conservative vote, one wonders if the real complaint is that Sutton is being political or that he’s not being political enough.

  45. RGK, I grew up in a small town, so maybe I don’t get your fancy Article III ways, but does “I get your point” mean “I agree” or does it mean something else?

    As for your question, I disagree with you.

  46. Prof. Kerr,

    I do not think that our discussion is productive. I assume that is my fault. Let’s call it a day.

    All the best.


  47. At the risk of establishing a toehold where one doesn’t belong, my observation is that the criticisms (RGK’s and others) of Sutton’s opinion are that it is neither intellectually rigorous nor sound on precedent and facts. And that it leans toward a religious holding that is anathema to American jurisprudence. His personal opinion may or may not align with his legal writing, but who cares? This is not the kind of opinion where “You do what you think is right and let the law catch up.”* The law appears to have overtaken Sutton some time ago.
    * Thurgood Marshall

  48. A paragraph from Martha Craig Daughtrey’s brilliant dissent is enlightening:

    In the main, the majority treats both the issues and the litigants here as mere abstractions. Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status—de jure status, if you will—with their married neighbors, friends, and coworkers, to be accepted as contributing members of their social and religious communities, and to be welcomed as fully legitimate parents at their children’s schools. They seek to do this by virtue of exercising a civil right that most of us take for granted—the right to marry… For although my colleagues in the majority pay lip service to marriage as an institution conceived for the purpose of providing a stable family unit “within which children may flourish,” they ignore the destabilizing effect of its absence in the homes of tens of thousands of same-sex parents throughout the four states of the Sixth Circuit.

  49. While in some sense I agree with your sentiment (minus the weird antagonism for Harvard law….admittedly I met some shallow people from there but if you want to make statistical observations about harvard law grads sucking up this isn’t really the place to do it) it does assume a certain interpratation of the constitution that is immune to shifts in popular sentiment.

    Indeed, Sutton could have easily responded as follows.

    Sutton: “Well do you doubt that 20 years ago the equally esteemed and educated judges on the various appellate circuits would have avoided granting relief to plaintiffs seeking a right to same sex marriage?”

    Law Student: “No, that’s clearly true. Even the supreme court refused to do so 40ish years ago but that was the result of bias and judicial restraint”

    Sutton: “Ah ha, so you admit that judicial restraint sometimes counsels justices to look the other way and allow genuine constitutional violations that cause some people real harm to continue?”

    Law Student: “Well, I guess there are times when the harm created by the perception the court is ramming it’s own unpopular legislative agenda down the nation’s throat can outweigh the good the court might do in enforcing the constitution.”

    Sutton: “So you admit in principle that insufficient popular support for gay marriage means that restraint counsels against supporting it. You just think that the current brief and narrow nationwide support for gay marriage suffices to undermine the issue of restraint and I don’t. Moreover, once you’ve embraced this kind of consequentialist balancing of a deciscion’s effects surely it’s kosher to consider whether a decision from the supreme court would help to enhance the perceived legitimacy of the outcome.”

    Law Student: “Well, ok, that’s a reason to avoid granting relief. Shouldn’t you consider the reasoning of your fellow appellate judges as persuasive and say so while reluctantly concluding you are bound by precedent?”

    Sutton: “But you make an error of logic here in assuming that the actual opinions of appellate justices now are less influenced by public sentiment than the counterfactual decisions that appellate justices would have written had they been forced to give written opinions on the same cases 30 years ago. Indeed, if you believe that the meaning of the constitution must be constrained in some broad way by the intentions of those who ratified the amendments (novel uses of a word don’t change the law) won’t it generally be true that new moral views will be more likely to cause judges to revise their constitutional interpretation to say what they think it should have said rather than bias clouding what judges closer to the adoption of the amendments would have accepted?”

    Law Student: “No, as civilization advances we realize that the general nobel statements adopted in the constitutional text entail moral rights that the adopters themselves might have viewed as abhorrent.”

    Sutton: “You are just falsely glorifying the individuals who ratified the constitution and it’s amendments because they used flowery language. There is nothing about flowery language that prevents the meaning of constitutional provisions from embracing what you see as moral oversight, e.g., that gender equality meant treating men and women broadly similarly in the public sphere not guaranteeing rights that were in conflict with the moral and sexual mores of the people.”

    Personally I tend to think that judges SHOULD adjust their constitutional interpretation based on shifts in moral sentiment but it’s far from a clear case.

  50. Peter,

    Thank you for writing. Your exchange between Sutton and the law clerk is fascinating.

    I wonder though whether the exchange fails to address a salient point. If all the other Circuits are going one way, and you, as the judge, are inclined to go the other way, what weight should you give to the views of the 12 or so other appellate judges who see things differently. In other words, doesn’t intellectual modesty require far more respect for a large group of appellate judges who are as thoughtful as you?

    To put it bluntly, does Sutton think he is smarter than Posner? Read if you will Judge Posner’s decision (which is here), and objectively compare it to Judge Sutton’s opinion. Regardless of your individual preferences, which one is stronger? In my view, Posner wins by a landslide and Sutton’s opinion is by comparision a very weak sister. Judge Sutton either had a very bad hair day when he wrote the SSM opinion or the moment got the better of him. Either way, he owed the opinions of the other Circuits far more respect and engagement.

    All the best.


    PS I agree with you that picking on Harvard is not fair, but Harvard is not going to be harmed by my slight poke. I wanted a foil to illustrate that Judge Sutton’s decision, if noting else, was tone deaf to the practical implications of creating a Circuit split. Brilliant people like Sutton are sometimes either unaware of, or insufficiently insensitive to, such things. That comes from being “too academic,” if you get my meaning.

  51. It’s getting to be time, I think, to quote Finley Peter Dunne’s Mr. Dooley. “No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns”

  52. Prof. K: “Given that, it seems weird to suggest that Sutton’s decision in the SSM case indicates that he’s a political hack.”

    Not in proper context. As one wag put it, “whenever a judge has a dog in the hunt, he will never fail to pet it.” Much as Scalia’s “originalism” invariably falls prey to his personal policy preferences, most judges at the appellate level are reliable “proxies” for their side in the political and culture wars. This is why we get so many bizarre opinions in the “hot-button” cases: There isn’t a fig-leaf large enough to cover the obvious.

    If Judge Sutton had penned a stronger argument for why a rational basis test should apply, he might have been given a pass. But not for this effort.

    As for Sutton’s personal position on SSM, I doubt that we would ever get an honest answer from him at this point. The man is only human.

  53. That is reminiscent of Rosa Parks’s response when she refused to vacate her seat: “I was just tired.” Few litigants go to court to bring about social change. They want their goddamned rights, and they want them now!

    And don’t they have a right to their rights?

  54. Fair enough about Harvard.

    My point (which I expressed at far too great length) is basically that intellectual modesty can’t really push one way unless you think todays appellate judges are far smarter than those 30 years ago or that those 30 years ago wouldn’t have denied these plaintiffs relief. At least if you take it to be a relatively mainstream view that the constitution requires the same things now (maybe absent 8th amendment issues) as it did 30 years ago believing the first two claims.

    Once you admit that what judges would have decided has changed with time why is it more modest to agree with what your current colleagues think rather than a similarly strong consensus 30 years prior? The mere fact that decisions were actually written now and were not then can’t be enough.

  55. Peter,

    As Holmes said, the life of the law is experience and not logic. The old logic that you and Sutton rely upon no longer prevails. The law has moved on at the Supreme Court and it has trickled down to the Fourth, Seventh, Ninth and Tenth Circuits. I might have been far more tolerant of Judge Sutton’s opinion had he been the first to write on this question. But, he wasn’t. And, that takes me back to my question.

    As a pure matter of legal writing and legal reasoning, and setting aside our policy preferences, which opinion is stronger, Sutton’s or Posner’s?

    All the best.


  56. There are two slightly different notions of stronger at play here causing confusion.

    Posner’s opinion is no doubt stronger in it’s persuasive power to the undecided, in it’s rhetorical charachter and even breadth of coverage. If they were law students assigned a side to brief by the professor Posner would clearly deserve the better grade.

    But it’s just not true that justices should cast their vote with the best written opinion making the strongest possible case for it’s side. They should apply the law correctly even when this means issuing a muldeled, less well written and less of a brilliant intellectual gem. If this were not the case the best writer on the supreme court should always carry the day no matter how wrong his opinion just because they did an surprisingly good job of defending the wrong result and the other justices can only offer mediocre rhetorical skill in their justification of the right result.

    The other notion of stronger is who had the intellectually more persuasive position overall regardless of how brilliantly they explicated it. Here again I’m inclined to go with Posner though I disagree with much of his reasoning. In particular, whatever the court may have said in Lawrence, it’s just not true that pure moral disapproval isn’t still a perfectly good reason for a law (diversion see argument below). I do think he reached the right result but only on the ground that cases like Sullivan on prisoner marriage do establish a fundamental right to the purely spiritual aspects of marriage in the worst possible case for marriages practical role in society.

    However, the fact that Sutton is wrong doesn’t make his decision unjustified in the sense you suggest. Sometimes there are wrong but quite reasonable intellectual positions. One way to demonstrate a position is reasonable is to establish it follows from other reasonable positions.

    That is what I suggest above, namely that Sutton’s conclusion, is justified by the reasonable views that the constitution’s protections are generally independent of transitory popular opinions and that there is no way that one can think the enactment of some particular amendment eviscerated either the power to pass laws based on moral disapproval (see below) or that equality of the sexes could be understood as putting rules about same sex restrooms etc.. under intermediate scrutiny. I think this is wrong but still reasonable.


    Why pure moral disapproval is still perfectly good reason for a law.

    I mean why isn’t it legal to kill disabled children under 1 year of age who will almost certainly die at 15 after painful medical procedures? It would likely improve economic productivity. By killing them earlier people will have developed less attachment to them and feel less grief and they will avoid the pain of those medical procedures. The answer is simply that we judge it to be morally wrong (and any mention of rights just begs the question). Indeed, as the romans regarded children below 1 essentially the way we do first trimester fetuses you can’t even assume they have constitutional rights fetuses lack without begging the moral question. Frankly, I don’t think either of the appelling states really pushed this point to the maximum effect for fear of appearing bigoted and anti-homosexual.

    Most other criminal laws are based on nothing else. Congress doesn’t need to find any particular causal effect of drugs to ban them (do you really think current jurisprudence would strike down drug laws for lack of fact finding claims). It only need conclude that it’s morally bad for people to be high. Same thing with genetically engineered babies or a 100 other things.

    And surely if you can criminalize something just for being wrong you can think it is a lessor wrong that doesn’t deserve criminal contempt but no social recognition either.

  57. Absinthe, one problem with your view is that Sutton’s rational basis arguments are very similar to those offered by constitutional law scholars who are publicly in favor of SSM but think there is a rational basis for laws that do not recognize SSM — including myself and Eugene Volokh.

  58. This comment would have made a much better post than the actual post.

    At what point, though, does intellectual modesty collide with a judge’s responsibility to vote honestly and independently? And to what extent is your argument just a critique of Judge Sutton’s writing style?

    The CA6 opinion engages what looks to be all of the arguments put forward by the plaintiffs and by the other circuits and explains why the majority finds them unconvincing. I haven’t made a list, but I don’t see any arguments that are left out.

    As one example, Posner brushes Baker aside in a single page (p. 14 of his decision), and the CA6 engages with the same argument (that Romer, Lawrence, Windsor, and Hollingsworth render Baker worthless), albeit without citing Posner’s opinion by name. It’s well and good to disagree with the result and the reasoning, but I’m trying to figure out what work intellectual modesty and sensitivity to a circuit split is supposed to be doing here.

    I’m not sure that any judges think they’re actually smarter than Judge Posner, at some point your critique becomes an argument that judges are required to swim with the tide even if they sincerely believe that the law compels a different result than what other courts have reached.

  59. Peter,

    I don’t disagree with much of what you have written. It is the creation of a Circuit split that bothers me for the reasons that I have given before. Thanks for your incisive and penetrating comments.

    All the best.


  60. observer,

    Fair enough: “at some point your critique becomes an argument that judges are required to swim with the tide even if they sincerely believe that the law compels a different result than what other courts have reached.” It is an interesting question that one.

    Thanks for writing. You have helped clarify some of my thinking, and I appreciate it.

    All the best.


  61. Rather than continue my overlong comments I think I’ll leave it here with the note that I think what you and observer say here captures much of what bothers me. The only other question is the minor point of whether it is actual deference to decisions issued by many colleagues or intellectual modesty that should urge restraint (they differ if you think it’s plausible that social pressure not intellectual considerations is driving the consensus against you).

    No need to reply here. I just wanted to say I enjoyed the discussion and thank observer for his concise statement of what seemed the key issue.

  62. Prof. Kerr, no one is disputing the coherence or erudition of Judge Sutton’s exposition of RB jurisprudence but rather, whether it is even colorably relevant. “Marriage” is just a contract, and the question of whether the right to enter into a marriage contract is a “fundamental right” was settled even before I got married. You have to ignore fifty years of settled law to even indulge the discussion, which was Prof. Somin’s point:

    Most egregiously, Sutton completely ignores the sex discrimination argument, even though it was in the briefs and has been endorsed by some of the previous lower court opinions on the subject. Even some opponents of same-sex marriage recognize that laws banning it are based on sex discrimination. As one of them puts it, such laws “require state officials to consider people’s sex” in determining who is allowed to marry whom, and “involve… treating sex as Virginia’s ban [on interracial marriage] in Loving had treated race.” If Sutton disagrees, he should have at least explained why.

    Perhaps Sutton ignored the issue because he believes that the entire question of heightened scrutiny was foreclosed by the Supreme Court’s one line opinion in Baker v. Nelson (1972), which dismissed a same-sex marriage case on the grounds that it failed to present a “substantial federal question.” Sutton argues at length that Baker is still good law, despite multiple Supreme Court decisions since then, which seem to cut against it. But Sutton completely ignores the fact that Baker was decided before the Supreme Court first ruled that gender classifications are subject to heightened intermediate scrutiny, which did not occur until Craig v. Boren in 1976. If Sutton wishes to rely so heavily on Baker’s cursory non-analysis of the same-sex marriage issue, he at least needs to explain why Baker was not superseded by Craig, and by the many other Supreme Court decisions applying heightened scrutiny to gender classifications since then (including in cases where the discrimination in question was not motivated by animus or hostility to either men or women, as such).

    If you are going to go catty-wompus-to-the-world, you have a duty to explain why your learned colleagues are so bat-guano crazy. (They may be, and have been!) It’s a great subject for a law review article, but it probably doesn’t belong in a published appellate opinion.

    This is another classic case of a judge deciding who he wanted to win, and writing an opinion to support it. One bad link usually breaks a chain of legal reasoning, and the weaker the reasoning, the more obvious it is. Even a judge with the skill of a Sutton can’t put lipstick on that pig.

  63. Peter,

    If I were the law clerk, I might have responded initially that

    “the modern doctrine of precedent not only requires that a court follow certain decisions, but that it give appropriate consideration to the considered rulings of sister Circuits. And if the Constitution means what it says and says what it means, the decision should have been the same in 1972 as in 2012. That the Court was not ready to apply the Constitution properly in Plessy v. Ferguson and Baker v. Nelson speaks more to the Justices’ faults and foibles than any failings in the law. The Court has repudiated Baker in subsequent decisions, which your brother Judges have unanimously acknowledged. If they are all wrong, you have to explain decisions like Windsor and Hollingsworth v. Perry (which could have been dismissed summarily, if Baker was still good law). If the Justices would not decide the question in a transparent manner twenty years ago, they were wrong in not doing so.

    [As someone said here,] Stare decisis is not a straight-jacket, but a corset.”

    I offer this with due regard to Judge Sutton’s scholarly works, including recent ones ( Sutton presents a patently originalist argument in DeBoer: ” Any other approach, too lightly followed, converts federal judges from interpreters of the document into newly commissioned authors of it.” Originalism presumes that we start at the Constitution, as opposed to what other judges thought it said. Justice Thomas often argues for a purist form of originalism: If we got it wrong before, let’s get it right now. Sutton’s originalism may be as “faint-hearted” as Justice Scalia’s is, but a principled originalist argument should have shut down your line of argument in his chambers.

    Baker is everything I despise about one-sentence rulings and “unpublished” opinions. A proper judicial decision doesn’t just say who won, but WHY … and not only binds the parties, but everyone else. Anything short of that is mere judicial fiat. Baker falls far short of that ideal.

    I cringe at the thought that a shift in moral sentiment should be a driving force behind adjustments in judicial decisions. A “living” constitution is an unstable one, driven more by judicial fiat than the legitimate exercise of judicial power. Who decides what “moral sentiment” is, and that it has ‘shifted’? Cf. Roper v. Simmons, Stanford v. KY. I’m as baffled by that one as Scalia was.

  64. Peter, if I understand what you’re saying, you find support for Sutton because his opinion reflects his (and a majority of society’s) moral disapproval of SSM — the “icky” factor — and that SSM may be a “transitory popular opinion” — we need to wait a while and see what bad things might happen if SSM becomes generally legal. Why aren’t these holdings the same as the State of Virginia’s in Loving? And if SSM can be legalized or not, state by state, what’s to prevent a state from criminalizing SSM? Remember, the Lovings had been sentenced to a year in prison for marrying each other in another jurisdiction.

  65. 765.30(1)(a) of the Wisconsin code provides a penalty of up to 9 months in jail and a $10,000 fine to “any person residing and intending to continue to reside in this state who goes outside the state and there contracts a marriage prohibited or declared void under the laws of this state.”

  66. Awesome site you have here but I was curious if you knew of any community forums
    that cover the same topics discussed here? I’d really like to be a part of online community where I can get opinions from other knowledgeable individuals that share the same interest.
    If you have any suggestions, please let me know. Many thanks!

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