Arkansas gets schooled on SSM

[Bone]

@wolfpup

For the record, I use terms like “lunatic” as a euphemism for the far right, especially in reference to many of their positions on social issues. You don’t have to take it literally.

I think hyperbole has a place in persuasive writing, but when overused it weakens its impact and seems less like an exaggeration and more like an accurate reflection of underlying beliefs.

That is certainly the question, and your view is most charitable, but my question is, is this charitable view credible and realistic? I suggest that it’s not credible at all. What does it tell you that Chief Justice Roberts dissented on Obergefell but, that case having been settled, sided with the majority on this ruling which cites Obergefell as its basis? And then there’s this:

It doesn’t tell me anything really. I note that under the Roberts court the use of summary reversals has risen, so I would tentatively say that this may speak to his desire for consensus. Perhaps he thinks the standard for granting summary reversal should be lowered and that he could see that while the petitioners didn’t attack the correct law, their position had merit so why go through the rigmarole of having to amend their complaint, argue the case before the court, etc. and just be done with it. But that’s just my conjecture.

… Our analysis suggests that, if confirmed, Gorsuch might be the most conservative justice on the Supreme Court.
https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/15/neil-gorsuch-could-be-the-most-conservative-justice-on-the-supreme-court/

We talked about this analysis in another thread which I don’t think you participated in. Here is what I said then:

@Bone

I will gladly acknowledge that Gorsuch is what is typically described as conservative in his judicial philosophy. That part isn’t in question so the pronouncement that he is conservative is not really surprising or controversial. But is he more conservative than Scalia? Well I think that will depend on how it’s measured. In looking at the actual research here is how they describe the methodology:

Taking a different approach to estimate Gorsuch’s ideology and where he will fit on the Court, we apply a standard one-dimensional item response theory model. This approach estimates the ideal point of Gorsuch in the same policy space as his would-be colleagues on the Supreme Court. To do so, we started by gathering all dissenting opinions filed on the Tenth Circuit from January 1, 2006 through February 4, 2017. We used Lexis-Nexis Academic Universe to obtain a total of 345 opinions. We then simply coded these opinions for whether a judge voted with the majority or with the dissent. Votes that were “mixed” (e.g., dissent in part) were coded as dissents, as were dissents from the denial of en banc rehearing. This yielded a total of 1246 judge votes, 86 of which involved Gorsuch.

…

In a perfect world, we would have instances where the justices of the Supreme Court sat alongside judges from the Tenth Circuit and decided the same case. Alas, such data do not exist. Nevertheless, we do observe cases where the Supreme Court reviewed decisions by the Tenth Circuit. The High Court reviewed 26 such cases between 2007 and 2016. We use these observations as though they were the justices voting on the same panel as the Tenth Circuit.

The research cited does show that Gorsuch as measured would be more conservative than Scalia, however I’m not sure how meaningful that is. It certainly isn’t disqualifying, IMO, as you indicated previously. A few things stand out to me about the methodology though: Why just the dissents? Is it fair to base their assessment on 26 overlapping cases? Is it reasonable to do this type of analysis when the two courts are faced with different circumstance, different negotiations, and serving a different purpose? This methodology would be more robust if it was conducted for other jurists where the results are more known - say for the current members of SCOTUS when they served in an appellate role.

So two things. First, I grant that Gorsuch is conservative - whether the magnitude of his conservatism is greater than Scalia I’m not convinced, but I am convinced it doesn’t matter. …

To be clear, I’m not saying that Gorsuch would have voted with the majority had the case gone to trial. I am saying his dissent is limited to the issue of granting summary reversal. Interpreting beyond that is premature, IMO.