Why I am also #waitingforSutton

Earlier this week, I began to notice #waitingforSutton on Twitter. And one morning, when the Sixth Circuit posted links to its opinion a little later than expected, I was surprised to find myself rather eager to read whatever opinions might be coming in the Sixth Circuit's same-sex marriage cases. This is due in no small part to Judge Sutton's presence on the panel.

Many who attended or heard the audio of the August 6 oral arguments believe that Judge Sutton's vote one way or the other will be decisive. That assessment seems accurate, as is the belief that the Sixth Circuit is less likely to conclude that the Fourteenth Amendment to the Constitution of the United States requires states to redefine marriage to include same-sex couples than the Fourth, Seventh, and Tenth Circuits have proven to be. 

There are therefore a couple of obvious reasons why people are #waitingforSutton. A Sixth Circuit decision upholding state laws would create a circuit split and almost certain cert grant. And the decision could come any day now. (Oral arguments were August 6, and according to the Sixth Circuit Appellate Blog, "the Sixth Circuit's average time between argument and decision is 2-3 months ....").

These are not the only reasons, though, and for me at least, not the most important. Judge Sutton is an excellent judge and an excellent writer. As I've said before, Judge Sutton's opinions are "conversational and accessible to an intelligent lay reader." Whatever the outcome Judge Sutton's opinion ultimately supports, it is unlikely to convey the "disdain for lawyers' arguments or contempt for legislators and voters" that comes through in Judge Posner's opinion in Baskins v. Bogan.

I do not expect Judge Sutton to vote to hold the states' marriage laws unconstitutional. But if he were to do so, I would expect his opinion explaining that vote to be more persuasive than those that have been released thus far.

If, as is more likely, Judge Sutton votes to uphold the states' definition of marriage to require one man and one woman, and if the Supreme Court later holds to the contrary, my hope is that his opinion will be one that I can assign to serve the same functions as when I assign Judge Friendly's pre-Roe draft abortion opinion. A sound circuit court opinion before a bad Supreme Court decision can show a path not traveled in a different way than a powerful dissent.

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For those seeking insight into Judge Sutton's thinking about constitutional law and judging more generally, here are some extrajudicial writings:

 Courts as Change Agents: Do We Want More — or Less? (Harvard Law Review, Vol. 127, pp. 1419-1445, 2014) (HT: Originalism Blog)

 Courts, Rights, and New Technology: Judging in an Ever-Changing World (NYU Journal of Law & Liberty, Vol. 8, pp. 260-278, 2014) (HT: Originalism Blog)

Barnette, Frankfurter, and Judicial Review (Marquette Lawyer, Fall 2012, pp. 13-23)

What Does--and Does Not--Ail State Constitutional Law, (Kansas Law Review, Vol. 59, pp. 687-714, 2011)

A Review of Richard A. Posner, How Judges Think (Michigan Law Review, Vol. 108 pp. 859-76, 2010)