Is the Sixth the New Ninth?

The Cincinnati Enquirer reports on the string of cases in which the Supreme Court has reversed the U.S. Court of Appeals for the Sixth Circuit.  As the Enquirer story notes, the Sixth Circuit has batted 0-15 over the past three Supreme Court terms.  This is quite remarkable. No other Circuit has been reversed so consistently over this period.  As I noted here, it’s also quite unusual to see a single Circuit reversed so consistently in a single area, such as criminal procedure and habeas rights, as the Sixth was last term.

What’s causing the Sixth Circuit’s poor record?  I am reluctant to read too much into the numbers, as it could be just dumb luck.  The Supreme Court reverses more often than it affirms lower court opinions, and the number of cases is small enough that it’s not clear they establish a trend.  That said, I would offer some observations:

  • Some of the judges on the Sixth Circuit are unquestionably out-of-step with the Supreme Court on habeas review, and this likely accounts for the high number of recent reversals in habeas cases.
  • The lack of collegiality among a handful of the judges on the Sixth Circuit likely plays a role as well.  It’s not just that some of the judges on the court don’t work well together.  Rather, it is clear that some of the judges do not trust all of their colleagues — some have said as much in print — and this lack of trust could make it more difficult to resolve disagreements about what existing law requires in specific cases.  These sorts of discussions require that the participants believe all are operating in good faith.

If I am correct, then I would expect the Sixth Circuit’s record to improve in the years ahead.  There’s only so long that a Circuit (or judges on a Circuit) can resist Supreme Court precedent, and the confirmation of new judges to the Sixth will help breakdown any bad feelings amongst some of the more senior judges on the court.