A Steaming Pile of Outrage Porn
Imagine you’re Crash Davis. Yes, the minor-league baseball player memorably portrayed by Kevin Costner in Bull Durham. You know you’re not going to make it to the big leagues. You even know your team is unlikely to win in the minors. But you’re a professional, and you give it all you’ve got.This, it seems to me, is the position of Appellate Judge Jeffrey Sutton, a respected conservative thinker who’s unlikely to make it either to the Supreme Court bench or the right side of history when it comes to same-sex marriage, but who is still a judge’s judge, a consummate professional. What would you do?
This lede, from
Jay Michaelson’s “All The Wrong Reasons To Ban Gay Marriage” in The Daily Beast,
tells us exactly where the author is going … and it’s going nowhere pretty.
Instead of offering a thoughtful deconstruction of Judge Sutton’s majority
opinion in DeBoer v.
Snyder, he’s going to whine, snark and ad hominem Sutton to death.
Granted, so much is to be expected from anyone who deliberately
writes for The Beast, one of too many e-zines that exist simply to grunt out
steaming piles of outrage porn for the consumption of a polarized, perpetually
angry public. Writing for these vendors of schlock journalism must be easy —
all you have to do is emote for 1,500 words or so.
But whine, snark and ad
hominem arguments aren’t legal analysis. I don’t mean they’re not legal
analysis because they come from a journalist or a blogger; I mean they’re not
legal analysis even if Justice Anthony Kennedy does it, as
he did in United States v. Windsor
(2013). Whine, snark and ad hominems
are a feature of playground name-calling, which is often interchangeable with
political rabble-rousing and (unfortunately) certain brands of comedy.








