Monday, July 6, 2015

Sparring Jurist: The Federal bench blogs it out.

For those who wonder if a lawyer should be writing a blog (blawg?) let me note that several Federal judges do and others write op-eds.

That's right, the appointed for life members of the quasi ruling class, post Obegefell, blog and write, which is a comforting thing in some ways, and certainly interesting.  And they're duking it out with each other in print in some circumstances.

First we have Judge Posner, one of the most quoted, stuck on the bench never going to the Supreme Court jurists of all time, who wrote an oped in Slate in which he accused Roberts, in his dissent, of being bigoted and heartless.  In fairness, Posner is frequently cited as a great jurist for some reason (I'm not entirely sure why, but he is).  Posner was for years considered a potential Supreme Court nominee, but he's never been nominated, and at this point, he's not going to be.  He occupies a position as an appellate judge on the 7th Circuit Court of Appeals, at age 76 (yes, once again, a geriatric Federal judge).  Posner got owly about Justice Scalia's dissent in Obegefall.  Posner, falling into The White Man's Burden logic, got upset about Justice Robert's citation to ancient peoples as having the same concept of marriage as we did, up until last week.  In so doing, Judge Posner stated:
We’re pretty sure we’re not any of the above. And most of us are not convinced that what’s good enough for the Bushmen, the Carthaginians, and the Aztecs should be good enough for us. Ah, the millennia! Ah, the wisdom of ages! How arrogant it would be to think we knew more than the Aztecs—we who don’t even know how to cut a person’s heart out of his chest while’s he still alive, a maneuver they were experts at.
Posner was, in my mind, being petty and misleading in this comment, and apparently I'm not the only one who thought that regarding his article.   U.S. District Judge Richard Kopf of the 5th Circuit, who blogs, who admits unabashed admiration for Posner, commented on his blog:
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.
Judge Kopf also had interesting words for the Justice Sutton, of the 6th Circuit, however, as he noted: 
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.
I disagree with Kopf in Sutton's views being idiosyncratic, and actually Sutton wasn't alone in his views in judicial opinions   But Kopf here has noted what I did, that the Supreme Court was harmed by this decision. And that harm, in my view, extends not only to the Supreme Court, but the entire country.

It's always assumed that Supreme Court decisions have a certain fini quality to them. That isn't always true.  It's already proving not to be true in this instance, with Federal judges now making comments about one another in print, and even one Supreme Court justice mentioning this case a second time in a second oral dissent following this case.  In the end, we're going to get less of a court, or more of one, and it will be the fault of this decision.  This court should have re-read John Marshall.

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