Sutton was in private practice in Columbus from 1992 to 1995 and 1998 to 2003, serving as
Solicitor General of Ohio from 1995 to 1998. He has also served as an adjunct professor of law at the
Ohio State UniversityMoritz College of Law[3] since 1994 and more recently as a visiting lecturer at
Harvard Law School.[4] He teaches state constitutional law, a subject in which he is particularly interested and about which he has written extensively.[5]
Federal judicial service
Sutton was first nominated by President
George W. Bush on May 9, 2001, to a seat on the Sixth Circuit vacated by
David A. Nelson, who assumed
senior status on October 1, 1999. That nomination, made during the
107th United States Congress, never received a floor vote in the
United States Senate. Sutton was not confirmed until almost two years later, on April 29, 2003, when the Senate of the
108th United States Congress confirmed him by a 52–41 vote.[6] He received his commission on May 5, 2003.[7] He became Chief Judge on May 1, 2021.[8]
Notable opinions
In 2007, Sutton dissented in part when the Sixth Circuit held that a police officer did not have
qualified immunity for arresting a speaker for using foul language at a town meeting.[9] In June 2011, Sutton became the first judge appointed by a Republican to rule in favor of the
health care mandate in President
Barack Obama's
Health Care law.[10]
In November 2014, Sutton authored the 2–1
opinion ruling upholding same-sex marriage bans in Michigan, Kentucky, Ohio, and Tennessee in the Sixth Circuit reversing six previous federal district court rulings. The ruling was the second federal court ruling and the only Federal Court of Appeals ruling[11] to uphold same-sex marriage bans after the U.S. Supreme Court struck down a portion of the
Defense of Marriage Act in United States v. Windsor in June 2013. This ran counter to rulings by the U.S. Courts of Appeals for the 4th, 7th, 9th and 10th circuits, which then led the U.S. Supreme Court to grant
writ of certiorari to review same-sex marriage bans when it previously declined to do so.[12][13] In Obergefell v. Hodges the Supreme Court reversed the decision of the Sixth Circuit.
On July 8, 2023, Sutton temporarily halted a lower court injunction[14] on Tennessee's law banning gender affirming care for minors.[15][16][17][18][19] Sutton reasoned that there is no "deeply rooted" historical or traditional evidence that the treatment is allowed.[20][21] He did note that the current ruling allowing the ban on gender-affirming care to go into effect is temporary, saying, "We may be wrong."[22] He has currently set forth a tentative date of September 30, 2023 to have a final judgement on the matter.[23]
Feeder Judge
Since joining the bench, Judge Sutton has been one of the most prolific feeder judges, sending a number of his law clerks to the Supreme Court.[24]
Other
Sutton chaired the Advisory Committee on Appellate Rules of the
Judicial Conference of the United States from 2009 to 2012, and served on the committee beginning in 2005. He went on to chair the Committee on Rules of Practice and Procedure from 2012 to 2015.[25]
Garner, Bryan A., Bea, Carlos, Berch, Rebecca White, Gorsuch, Neil M., Hartz, Harris L., Hecht, Nathan L., Kavanaugh, Brett M., Kozinski, Alex, Lynch, Sandra L., Pryor Jr., William H., Reavley, Thomas M., Sutton, Jeffrey S., & Wood, Diane P. The Law of Judicial Precedent (Thomson Reuters, 2016). ISBN 9780314634207