In this instance, Judge Posner lied

Let’s face it, I don’t belong in the same sentence as Judge Richard Posner. I regard Posner as a giant. I respect him and wish he sat on the Supreme Court. He is known for speaking the raw truth, and I highly respect him for that trait. But he is wrong as hell to write in Slate* that the Chief Justice’s dissent in the gay marriage case was heartless and furthered the cause of bigotry. It is a damnable lie.

The Chief Justice ends his dissent in the gay marriage case with these words:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Obergefell v. Hodges,  576 U. S. ____ (2015), slip op. at p. 29 of dissent.

Those are not the words of a cold and heartless and bigoted man. Indeed, if anything the dissent reflects a sadness that the Chief Justice cannot join the majority.**

Paul Barrett said it best when trying to understand the Chief Justice and his views in the Obamacare and gay marriage cases:

On Thursday, Chief Justice John Roberts drew fierce conservative fire for upholding Obamacare (again). A hero to political liberals for 24 hours, Roberts seemingly flipped positions on Friday to write the lead dissent opposing the nationwide legalization of gay marriage. What’s with this guy?

Actually, his opinions in the marquee cases of the 2014-2015 Supreme Court term aren’t difficult to reconcile. Agree or disagree with Roberts on the merits, one can easily discern an essentially restrained jurist concerned with promoting the machinery of democracy and the reputation of the highest court in the land.

Paul Barrett, Why John Roberts Upheld Obamacare but Dissented on Gay Marriage
He sides with liberals one day, conservatives the next. What gives?, Bloomberg Business (June 26, 2015).

No heartlessness. No bigotry. Instead, as Barrett stresses, “Roberts was notably gracious toward the gay couples who challenged state same-sex marriage bans.”

Posner’s assertion that Chief Robert’s dissent reflects a cold heart plus bigotry is a vicious lie–and Posner knows it. Why he lied in the Slate article is a mystery.


*H/T How Appealing.

**I continue to be enraged by Judge Sutton’s decision. He unnecessarily forced the Supreme Court to take this case. In doing so, Sutton harmed the Court as an institution. He should have cared more about the legitimacy of the Supreme Court than he cared about his idiosyncratic beliefs that were shared by no one else in the other Circuits.

“Yellow shoe firms”

If you are a civil practitioner, particularly one with a mega-firm, you must read Adam Liptak’s article of April 11, in the New York Times. See Adam Liptak, The Case Against Gay Marriage: Top Law Firms Won’t Touch ItNew York Times.

The refusal of top law firms to represent those who sincerely oppose gay marriage is, in my view, a stinking stain on our profession. Instead of referring to these factories as “white shoe” firms, better to call them “yellow shoe” firms for their abject cowardice. Shame on them.



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!




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