Sutton was in private practice in Columbus at the law firmJones Day from 1992 to 1995 and 1998 to 2003, serving asSolicitor General of Ohio from 1995 to 1998. He has also served as an adjunct professor of law at theOhio State UniversityMoritz College of Law[3] since 1994 and more recently as a visiting lecturer atHarvard Law School.[4] He teaches state constitutional law, a subject in which he is particularly interested and about which he has written extensively.[5]
Sutton was first nominated by PresidentGeorge W. Bush on May 9, 2001, to a seat on the Sixth Circuit vacated byDavid A. Nelson, who assumedsenior status on October 1, 1999. That nomination, made during the107th United States Congress, never received a floor vote in theUnited States Senate. Sutton was not confirmed until almost two years later, on April 29, 2003, when the Senate of the108th 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]
In 2007, Sutton dissented in part when the Sixth Circuit held that a police officer did not havequalified 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 thehealth care mandate in PresidentBarack Obama'sHealth Care law.[10]
In November 2014, Sutton authored the 2–1opinion 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 theDefense of Marriage Act inUnited 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 grantwrit of certiorari to review same-sex marriage bans when it previously declined to do so.[12][13] InObergefell v. Hodges the Supreme Court reversed the decision of the Sixth Circuit.
On December 17, 2021, inIn re MCP No. 165, OSHA, Interim Final Rule: COVID-19 Vaccination & Testing, 20 F.4th 264 (6th Cir. 2021), Chief Judge Sutton dissented from the denial of initial hearing en banc. The case concerned a rule issued by the Secretary of Labor requiring “roughly 80 million workers to become vaccinated or face a weekly self-financed testing requirement and a daily masking requirement.” Chief Judge Sutton’s opinion argues that the Secretary of Labor lacks “authority to impose this vaccine-or-test mandate.”[14]
On April 12, 2022, inArizona v. Biden (6th Cir. 2022), Judge Sutton wrote a concurrence suggesting that nationwide injunctions "seem to take the judicial power beyond its traditionally understood uses, permitting district courts to order the government to act or refrain from acting toward nonparties in the case."[15]
On July 8, 2023, Sutton temporarily halted a lower court injunction[16] on Tennessee's law banning gender affirming care for minors.[17][18][19][20][21] The 2-1 ruling, written by Sutton, decided that the plaintiffs"have not shown that a right to new medical treatments is 'deeply rooted in our history and traditions', and thus beyond the democratic process to regulate."[22][23] Sutton noted the current ruling allowing the ban on gender-affirming care to go into effect is temporary, saying, "We may be wrong."[24] He set a tentative date of September 30, 2023 to have a final judgement on the matter.[25]
On July 12, 2024, inGore v. Lee (6th Cir. 2024), Chief Judge Sutton authored a majority opinion that upheld a Tennessee law that “treats the sex listed on a birth certificate as a historical fact unchangeable by an individual’s transition to a different gender identity.” The opinion described biological sex as “a medical fact of birth collected by the State about everyone” and rejected arguments that the U.S. Constitution “require[s] Tennessee to change the biological sex listed on the birth certificates of transgender individuals to match their gender identities.” JudgeHelene White authored a dissenting opinion arguing that Tennessee impermissibly “classifies individuals based on the State’s generalizations of what it means to be truly male and female.”[26]
Sutton chaired the Advisory Committee on Appellate Rules of theJudicial 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.[28]
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
