One frequently reads that the judges who are striking down same-sex marriage bans are doing so because no one wants to be remembered as being on "the wrong side of history." See, for example this piece by Margo Schlanger in the Daily Beast. Indeed, as ABC reports, Freedom to Marry spokesperson Evan Wolfsan "blasted" yesterday's ruling using that very phrase. But are judges remembered as being on the wrong side of history when they make rulings that we now-or at the time-realize are wrong or morally repugnant? I doubt it.
Probably the best example of being on the wrong side of history is the Dred Scott decision which held that Americans of African descent had no rights under the United States Constitution. It is true that Chief Justice Roger B. Taney is probably best remembered for writing that decision. But I suspect that few people can name the six justices who joined in the opinion. Those justices were James Wayne, John Catron, Peter Daniel, Samuel Nelson, Robert Grier, and John Campbell. If we use Wikipedia as a proxy for how people are remembered, the Wikipedia biographies of three of those justices (Wayne, Nelson, and Campbell) does not mention their involvement in the case.
Similarly, consider Plessy v. Ferguson, the case which upheld "separate but equal" racial segregation. John Marshall Harlan is famous for dissenting in that case and, therefore, being on the right side of history (some of those people ignore that his dissent seems to suggest that racial discrimination against Asians is acceptable). But how many people can name one of the seven justices (it was decided by eight) who were in the majority? They were: Melville Fuller, Stephen Field, Horace Gray, George Shiras, Jr., Edward White, Rufus Peckham, and Henry Brown. The Wikipedia entries for each of those justices does mention them being in the majority on Plessy. So maybe those justices are remembered for that decision. But I suspect Justice Field is better remembered for as the longest serving associate justice and writer of the most opinions of any justice. Justice Peckham is probably better remembered as the author of the opinion in Lochner v. New York (which, it turns out is also on the wrong side of history).
Alert Reader(s)™ might point out my two examples of cases being on the wrong side of history are Supreme Court cases and, therefore, might not be a fair comparison to the Sixth Circuit. So let's look at two lower court cases that were on the wrong side of history.
In Brown v. Board of Education, the Supreme Court overruled Plessy and held that racial segregation in education was unconstitutional. The Board of Education in question was the one for the public schools in Topeka, Kansas. For reasons that I am too lazy to look up, the decision that the Supreme Court overturned is not from a Circuit Court of Appeals but from a panel of one judge from the United States Court of Appeals for the 10th Circuit and two from the United States District Court for the District of Kansas. The names of those three judges inspired the title of this post, Arthur J. Mellott, Delmas C. Hill, and Walter A. Huxman. As the links suggest, all three judges have Wikipedia entries. None of those entries mention Brown.
How about a famous case involving marriage? Loving v. Virginia struck down bans on interracial marriage. The Virginia Supreme Court of Appeals had upheld the ban here. None of the Virginia Supreme Court Justices voted to strike down the ban. The seven that voted to uphold it are: John Eggleston, Claude Spratley, Archibald Buchanan, Harold Snead, Lawrence l'Anson, Harry Carrico, and Thomas Gordon, Jr. Only Justice Carrico's Wikipedia page mentions the Loving decision. Justice Carrico died in 2013 and this Washington Post story about his death focuses primarily on Loving and refers to an interview in which Justice Carrico was still trying to justify his decision more than 40 years after Loving was decided.
What do you think Mr. Torvik? Are Jeffrey Sutton and Deborah Cook going to fade into the mists of time like Judge Huxman or will they end of like Justice Carrico? Perhaps more importantly, should judges worry about the judgment of history when deciding a case?