In this habeas case, the United States Court of Appeals for the Sixth Circuit set aside two 29-year-old murder convictions based on the flimsiest of rationales. The court’s decision is a textbook example of what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proscribes: “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 12).
The citation to Renico is a clear rebuke to the Sixth Circuit. Renico also reversed a Sixth circuit decision granting a habeas petition. As the Court notes later in its opinion, in Renico the Court corrected “an identical error” to that made by the Sixth Circuit here.
The reversal of the Sixth Circuit in habeas cases has become rather common. In the 2009-2010 term, when Renico was decided, the Supreme Court reversed Sixth Circuit habeas decisions in five separate cases. But it’s not just habeas cases. If I have my numbers right, the Sixth Circuit is 0-20 over the past four terms. This pattern has caused some to wonder whether the Sixth Circuit is (or could become) the “most-reversed” circuit or the “new Ninth.”
How the Sixth Circuit fares in the future will largely depend on how the court’s newest judges approach habeas cases, particularly those confirmed in the past five years. The lion’s share of the Sixth Circuit’s reversals have come from habeas cases and the lion’s share of those have involved opinions written or joined by a handful of judges who clearly have a different (and more pro-petitioner) understanding of habeas rights and the Anti-Terrorism and Effective Death Penalty Act (AEDPA) than does a majority of the Supreme Court. Even if a majority of judges on the Sixth Circuit have gotten the message and are ready to apply AEDPA in accord with relevant precedent, a handful of judges can still control the outcome in a significant number of cases. As not all erroneous panel opinions are en banc worthy, these opinions will survive unless reversed by the Supreme Court — and the Supreme Court has not been shy about reaching out to overturn the Sixth.