Judge on the Spot NOV. 26, 2014 During the month that followed the Supreme Court’s refusal to take up any of the same-sex marriage cases that awaited the start of the new term on Oct. 6, I filled an occasional idle moment with this thought: What would it be like right now to be Jeff Sutton? The court’s unexpected non-action made Jeffrey S. Sutton, hardly a household name but a very well-known federal appeals court judge, the judge of the hour. I’m not making the exaggerated claim that he held the future of same-sex marriage in his hands; the tide of history now running in favor of equality is greater than any one judge or group of judges, and will eventually swamp those who stand in its way. But history is open-ended and a Supreme Court term is finite. I’m offering the more modest claim that on the first Monday of October, Judge Sutton became the one person in the country with the power to make the question of same-sex marriage eligible, in the minds of the justices, for timely Supreme Court review. As of Oct. 6, there was no conflict among the federal appellate circuits on the question of whether the Constitution granted a right to marry someone of the same sex. All three circuits that had ruled had said yes: the Fourth Circuit, striking down Virginia’s law; the Seventh Circuit (Indiana and Wisconsin); and the 10th Circuit (Oklahoma and Utah). A three-judge panel of the Sixth Circuit, including Judge Sutton, had heard a consolidated argument two months earlier in cases from Ohio, Michigan, Kentucky and Tennessee. I didn’t attend the Aug. 6 argument at the federal courthouse in Cincinnati, but those who did came away uniformly of the opinion that the panel would be split. One judge, Martha Craig Daughtrey, was clearly unpersuaded by the states’ defense of their same-sex marriage bans, while another, Judge Deborah L. Cook, spoke little but seemed a clear vote to uphold the laws. Judge Sutton was in the middle, a likely vote for the states but not a sure bet for either side. Then in mid-September, with the Sixth Circuit case still undecided and the clock ticking toward the opening of the Supreme Court term, the increasingly chatty Justice Ruth Bader Ginsburg told a law school audience in Minneapolis that unless and until the Sixth Circuit departed from the other circuits’ pattern, there was “no need for us to rush” into the debate. But “there will be some urgency,” she said, if the Sixth Circuit were to rule the other way and create a circuit conflict — the chief marker of a case the justices deem worthy of their attention. (Although not always: Recall the justices’ unseemly move earlier this month to accept the latest challenge to the Affordable Care Act.) Over to you, Jeff Sutton. Three years earlier, Judge Sutton was in a similar position when the constitutionality of the Affordable Care Act’s individual insurance mandate came before the Sixth Circuit. Republican-appointed federal district court judges had declared the mandate unconstitutio ...

1. Judge on the Spot
NOV. 26, 2014
During the month that followed the Supreme Court’s refusal to
take up any of the same-sex marriage cases that awaited the
start of the new term on Oct. 6, I filled an occasional idle
moment with this thought: What would it be like right now to be
Jeff Sutton?
The court’s unexpected non-action made Jeffrey S. Sutton,
hardly a household name but a very well-known federal appeals
court judge, the judge of the hour. I’m not making the
exaggerated claim that he held the future of same-sex marriage
in his hands; the tide of history now running in favor of equality
is greater than any one judge or group of judges, and will
eventually swamp those who stand in its way. But history is
open-ended and a Supreme Court term is finite. I’m offering the
more modest claim that on the first Monday of October, Judge
Sutton became the one person in the country with the power to
make the question of same-sex marriage eligible, in the minds
of the justices, for timely Supreme Court review.
As of Oct. 6, there was no conflict among the federal appellate
circuits on the question of whether the Constitution granted a
right to marry someone of the same sex. All three circuits that
had ruled had said yes: the Fourth Circuit, striking down
Virginia’s law; the Seventh Circuit (Indiana and Wisconsin);
and the 10th Circuit (Oklahoma and Utah). A three-judge panel
of the Sixth Circuit, including Judge Sutton, had heard a
consolidated argument two months earlier in cases from Ohio,
Michigan, Kentucky and Tennessee.
I didn’t attend the Aug. 6 argument at the federal courthouse in
Cincinnati, but those who did came away uniformly of the
opinion that the panel would be split. One judge, Martha Craig
Daughtrey, was clearly unpersuaded by the states’ defense of
their same-sex marriage bans, while another, Judge Deborah L.
Cook, spoke little but seemed a clear vote to uphold the laws.

2. Judge Sutton was in the middle, a likely vote for the states but
not a sure bet for either side.
Then in mid-September, with the Sixth Circuit case still
undecided and the clock ticking toward the opening of the
Supreme Court term, the increasingly chatty Justice Ruth Bader
Ginsburg told a law school audience in Minneapolis that unless
and until the Sixth Circuit departed from the other circuits’
pattern, there was “no need for us to rush” into the debate. But
“there will be some urgency,” she said, if the Sixth Circuit were
to rule the other way and create a circuit conflict — the chief
marker of a case the justices deem worthy of their attention.
(Although not always: Recall the justices’ unseemly move
earlier this month to accept the latest challenge to the
Affordable Care Act.) Over to you, Jeff Sutton.
Three years earlier, Judge Sutton was in a similar position when
the constitutionality of the Affordable Care Act’s individual
insurance mandate came before the Sixth Circuit. Republican-
appointed federal district court judges had declared the mandate
unconstitutional, but there was not yet a conflict in the circuits;
the 11th Circuit would soon declare the mandate
unconstitutional and provide the vehicle for the eventual
Supreme Court case. With one member of the Sixth Circuit
panel voting to uphold the mandate and another voting to strike
it down, Judge Sutton was the judge in the middle. By his vote,
he became the first Republican-appointed judge on the federal
bench to find the mandate within the constitutional authority of
Congress to regulate interstate commerce.
Continue reading the main story
In his opinion, he rejected the challengers’ argument that
Congress lacked authority to regulate what they deemed
“inaction” — an individual’s failure to purchase health
insurance. “No one is inactive when deciding how to pay for
health care, as self-insurance and private insurance are two
forms of action for addressing the same risk,” Judge Sutton
wrote, adding, “Each requires affirmative choices; one is no less
active than the other; and both affect commerce.”

3. Along the way, he rejected the government’s fallback position
that the mandate operated as a tax that could be upheld under
Congress’s tax power. (This was, of course, the basis on which
Chief Justice John G. Roberts Jr. a year later cast the deciding
vote that upheld the mandate.) Without saying so explicitly,
Judge Sutton suggested that the tax argument was a dodge that
should “not allow a court to avoid a difficult constitutional
question,” namely the extent of the commerce power.
In the superheated atmosphere of the summer of 2011, this was
a highly noteworthy opinion, placing Judge Sutton in a bright
spotlight that I suspect was at once uncomfortable and thrilling.
Now 54 years old, he has for years been near the top of most
short lists of potential Republican Supreme Court nominees. As
Ohio’s state solicitor in the late 1990s, he earned a reputation as
a top-flight Supreme Court advocate, arguing and winning a
series of important Rehnquist court federalism cases for his
state and a coalition of others. His nomination to the Sixth
Circuit by President George W. Bush was blocked for two years
by the Senate’s Democrats — unfairly, I thought, given his
obvious ability and his credentials as a former law clerk to
Justices Lewis F. Powell Jr. and Antonin Scalia. He finally won
confirmation in 2003.
And now, as the days after the first Monday crept by, the
spotlight was back; hence my Jeff Sutton musings as October
turned to November. Then on Nov. 6, exactly a month after the
Supreme Court denied review in the earlier cases, the Sixth
Circuit issued its opinion, DeBoer v. Snyder. As forecast, Judge
Cook voted to uphold the four states’ laws and Judge Daughtrey
voted to strike them down. And there was Judge Sutton, writing
the majority opinion in favor of the states. He maintained that
the appeals court had no choice but to rule against same-sex
marriage because the Supreme Court itself had settled the
question 42 years ago by means of an unsigned one-line order in
a case called Baker v. Nelson.
What a disappointment.
Baker v. Nelson, a challenge by two men to Minnesota’s refusal

4. to issue them a marriage license, was the first case to reach the
Supreme Court claiming a right to same-sex marriage. The
Minnesota Supreme Court had rejected the claim, citing
“common sense” and the book of Genesis, among other sources.
Under the statute that then governed the Supreme Court’s
jurisdiction over constitutional cases decided by state courts,
the case reached the justices as a mandatory appeal, meaning
that while the Supreme Court didn’t have to hear argument or
issue a full opinion, its disposition would be treated as a
judgment with precedential weight. On Oct. 10, 1972, the court
decided Baker v. Nelson this way: “The appeal is dismissed for
want of a substantial federal question.”
Continue reading the main story
I last wrote about Baker v. Nelson in March of last year,
recounting my trip to the Library of Congress to see whether, in
the justices’ papers housed there, there was any indication that
the court had taken the case seriously. There wasn’t. Clearly,
the justices didn’t regard the question of same-sex marriage as
substantial enough even to present a constitutional issue for
their consideration.
This once-obscure case was being widely invoked by opponents
of same-sex marriage as a way of shutting down further
argument. What’s fascinating is how one federal judge after
another has repudiated the effort. Here is how decisions leading
up to the Sixth Circuit’s ruling have treated the question in
recent months:
* The Fourth Circuit in Bostic v. Schaefer, the Virginia case:
The majority held that in cases decided since 1972, the Supreme
Court “has meaningfully altered the way it views both sex and
sexual orientation through the equal protection lens.” The
opinion by Judge Henry F. Floyd continued, “In light of the
Supreme Court’s apparent abandonment of Baker and the
significant doctrinal developments that occurred after the court
issued its summary dismissal in that case, we decline to view
Baker as binding precedent and proceed to the meat” of the
arguments on same-sex marriage.

5. * The Seventh Circuit in Baskin v. Bogan, the Indiana and
Wisconsin case. Judge Richard A. Posner was even more
dismissive: "Baker was decided in 1972 — 42 years ago and the
dark ages so far as litigation over discrimination against
homosexuals is concerned. Subsequent decisions such as Romer
v. Evans; Lawrence v. Texas; and United States v. Windsor [the
2013 decision that struck down a portion of the Defense of
Marriage Act] are distinguishable from the present two cases
but make clear that Baker is no longer authoritative.”
*The Ninth Circuit, in Latta v. Otter, striking down same-sex
marriage bans in Idaho and Nevada: In this opinion, Judge
Stephen Reinhardt noted that other circuits “all agree that Baker
no longer precludes review.” He declared, “As any observer of
the Supreme Court cannot help but realize, this case and others
like it present not only substantial but pressing federal
questions.”
* The 10th Circuit, in Kitchen v. Herbert, striking down Utah’s
same-sex marriage ban: Judge Carlos F. Lucero wrote for the
majority that “although reasonable judges may disagree on the
merits of the same-sex marriage question, we think it is clear
that doctrinal developments foreclose the conclusion that the
issue is, as Baker determined, wholly insubstantial.”
Earlier comments by the indispensable Justice Ginsburg are
perhaps even more enlightening. During the Supreme Court
argument in March of last year on the constitutionality of
California’s Proposition 8, she engaged Charles J. Cooper, the
lawyer defending the proposition (which overturned same-sex
marriage in California), in a colloquy on whether Baker v.
Nelson continues to mean anything.
Continue reading the main story
“The constitutional issues that have been presented to the court
are not of first impression here,” Mr. Cooper began. “In Baker
v. Nelson, this court unanimously dismissed for want of a
substantial federal question.”
That provoked this rejoinder from Justice Ginsburg (who was
off by one year on the decision’s date): “Mr. Cooper, Baker v.

6. Nelson was 1971. The Supreme Court hadn’t even decided that
gender-based classifications get any kind of heightened
scrutiny. And the same-sex intimate conduct was considered
criminal in many states in 1971. So I don’t think we can extract
much in Baker v. Nelson.”
And now Judge Sutton on Baker v. Nelson this month: “This
type of summary decision, it is true, does not bind the Supreme
Court in later cases. But it does confine lower federal courts in
later cases. It matters not whether we think the decision was
right in its time, remains right today, or will be followed by the
court in the future. Only the Supreme Court may overrule its
own precedents, and we remain bound even by its summary
decisions until such time as the court informs us that we are
not. The court has yet to inform us that we are not, and we have
no license to engage in a guessing game about whether the court
will change its mind or, more aggressively, to assume authority
to overrule Baker ourselves.”
That way, he suggested, lay madness: “Any other approach
returns us to a world in which the lower courts may
anticipatorily overrule all manner of Supreme Court decisions
based on counting-to-five predictions, perceived trajectories in
the case law, or, worst of all, new appointments to the court.”
In describing this opinion as disappointing, I mean more, I
hope, than that I disagree with it. It’s shallow, resting on the
kind of dodge that an earlier Judge Sutton in another tough-for-
conservatives case pointedly avoided. This time, when its
author ventured out from behind the Baker v. Nelson curtain to
take a crack at the merits of the issue, the opinion quickly
became platitudinous. In a paean to originalism as a method of
constitutional interpretation, Judge Sutton drew a very odd
analogy between a constitution and an agreement to sell a
house:
“When two individuals sign a contract to sell a house, no one
thinks that, years down the road, one party to the contract may
change the terms of the deal. That is why the parties put the
agreement in writing and signed it publicly — to prevent

7. changed perceptions and needs from changing the guarantees in
the agreement. So it normally goes with the Constitution: The
written charter cements the limitations on government into an
unbending bulwark, not a vane alterable whenever alterations
occur — unless and until the people, like contracting parties,
choose to change the contract through the agreed-upon
mechanism for doing so” — namely, the Constitution’s
provision in Article V for amendment.
If there is a more reductive description of how to think about
the Constitution, I haven’t seen one lately. I’m struck by the
contrast between Judge Sutton’s approach and this concluding
paragraph from Justice Anthony M. Kennedy’s majority opinion
in Lawrence v. Texas, the 2003 decision that extended
constitutional protection to gay relationships:
Continue reading the main storyContinue reading the main story
Continue reading the main story
“Had those who drew and ratified the Due Process Clauses of
the Fifth Amendment or the 14th Amendment known the
components of liberty in its manifold possibilities, they might
have been more specific. They did not presume to have this
insight. They knew times can blind us to certain truths and later
generations can see that laws once thought necessary and proper
in fact serve only to oppress. As the Constitution endures,
persons in every generation can invoke its principles in their
own search for greater freedom.”
Conservatives like to mock Justice Kennedy’s penchant for what
Justice Scalia once derided as “sweet-mystery-of-life” prose. I
get that. But as between the Constitution as a real estate deal
and the Constitution as a “covenant with the future,” as
Anthony Kennedy described it during his Supreme Court
confirmation hearing, I know which one I would choose.
When I wrote about same-sex marriage in September, I stopped
short of predicting that the Supreme Court would hear the cases
then pending. Now that Supreme Court review is all but
inevitable, the only question seems whether appeals from the
Sixth Circuit can make it onto the court’s calendar in time for

8. argument and decision during the current term. Parties on both
sides want that. Plaintiffs in the four Sixth Circuit states filed
their Supreme Court petitions almost immediately. And
Attorney General Bill Schuette of Michigan, instead of waiting
until mid-December, as the rules allow, to file a brief in
response, told the justices on Tuesday that while he supported
the Sixth Circuit result, the issue was sufficiently important that
“Michigan does not oppose review by this court.” Yes, Virginia
(and Michigan, and Kentucky, and Ohio, and Tennessee, and
Utah, and Oklahoma, and Nevada, and Wisconsin, and Indiana,
and Idaho and yes, members of the Supreme Court) there is a
federal question and yes, Judge Sutton, it’s substantial.
http://www.nytimes.com/roomfordebate/2014/11/18/constitution
al-limits-of-presidential-action-on-immigration-12
Here is a link for articles on constitutional powers of the
president.
Check it out. This is excellent. You can find it on the front
page of the NY Times today, but the link will take you right
there.
http://www.nytimes.com/interactive/2014/11/25/us/evidence-
released-in-michael-brown-
case.html?hp&action=click&pgtype=Homepage&module=a-
lede-package-region&region=top-news&WT.nav=top-news
24 volumes and more than 60 witnesses