On the creation of Circuit splits

I have been critical of Judge Sutton for creating a Circuit split in the SSM cases. Specifically, I have been critical of the good judge for giving insufficient weight to the thoughts of his colleagues on the four Courts of Appeal that had previously gone the other way.

I have now read a fascinating article that touches on this subject, among other things. See Aaron-Andrew P. Bruhl, Following Lower-Court Precedent, 81 University of Chicago Law Review 851 (2014). The article is reviewed here.

It is a slog, but if you are interested in such things (a doubtful proposition, I suspect), read the entire article. That said, the most interesting part of the article from my perspective begins at page 925 (near the end) where the author illustrates the problem that Judge Sutton faced.

That the case the author uses to illustrate the point has to do with the Packers and Stockyards Act delights me because of my weird sense of humor. But, the serious question raised by the author (and I hope Judge Sutton thought hard about it) is this:

If all the Courts of Appeals have gone one way, but they were all wrong (from your perspective), what weight (say predictability) should the Circuit Judge considering the new case give to those previous cases from other Circuits?

The discussion that ensues is thoughtful and illuminating.

RGK

*H/t to How Appealing.

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!

RGK

 

 

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