Bloggers commented that the Supreme Court delivered the Sixth Circuit a “smackdown” in its reversal of Eric Clay’s decision in Bobby v. Bies. Yeah, the decision was unanimous and the opinion was written by Ruth Bader Ginsburg, likely the Court’s most “liberal” member, who said that Clay fundamentally misunderstood the Double Jeopardy clause of the Constitution.

In the typical conception of the judge, he should feel embarrassed when a higher court reverses his decision because the reversal shows that he was “wrong.” That’s particularly true when the reversal is unanimous, I guess. But I don’t think Clay is the typical judge in that sense. He’s a polemicist, and a judge. Think about it from his perspective: you get this novel death penalty case, a new Supreme Court case that’s relevant, and a panel that makes you wet yourself (Daughtrey, Moore, Clay); I’m sure he lost his goddamn mind with excitement.

That’s a golden opportunity to push the law to its limits. As Judge Sotomayor has pointed out, policy is made in the Courts of Appeals because the Supreme Court takes so few cases. That means that the structure of our courts is such that the Supreme Court decides cases but otherwise creates a vacuum filled by the Courts of Appeals and the variation therein is that which the system can tolerate.

To contrast for a second, David McKeague recently wrote a nonsense opinion in United States v. Guest, in which he reached in an attempt to limit United States v. Johnson, a recent case authored by Karen Nelson Moore which he didn’t like. Again, McKeague got a great panel for him (Siler, Cook, McKeague) and delusional with opportunity and self-importance he rolled with it. But no one cares about Guest, because the opinion was incompetently executed. It’s impossible to determine from reading it just what the point of the whole thing is.

I commend Clay for writing an opinion ambitious enough in scope and sufficiently provocative to warrant the Supreme Court’s attention. The smackdown was as much for being wrong as it was for flying too close to the sun. The nail that sticks out gets hammered down is an apt aphorism to summarize what happened here. You could say that the Supreme Court corrects lower courts, just as you could say that it demands conformity from them. Both Clay (and Moore) are rebels who have recovered from the Sixth Circuit’s jurisprudential shift and now are lashing out. In that Washington Post article about the Circuit, the Democratically-appointed judges came off as whiny, mopey losers. “Ohhh, they’re reversing our precious opinions by granting rehearing en banc.” Here, Clay not only touches the edges on what is plausible in law, he does so with aplomb. His conclusion that “this is an easy case” was a whimsical and defiant send-off “fuck you.”