« Interesting Fourth Circuit opinion affirming Virginia death sentences for female double-murderer | Main | "Ghostwriting: Filling in the Gaps of Pro Se Prisoners' Access to the Courts" »

June 5, 2010

Noting the Sixth Circuit poor habeas record when SCOTUS notices

Thanks to How Appealing, I saw that the The Daily Journal of California has this notable new piece headlined "6th Circuit Takes Lead As Most Reversed Appeals Court."  Here is how it begins:

The San Francisco-based 9th U.S. Circuit Court of Appeals, often categorized as too liberal and out of sync with the more conservative U.S. Supreme Court, faces some unusual competition this term for its crown as the most reversed circuit.

Earlier this week, the justices reversed the Cincinnati, Ohio-based 6th Circuit for the seventh time in seven cases (including one summary reversal), meaning a 100 percent reversal rate for the term.

Of those, five, including the summary reversal, were habeas corpus cases in which the appellate court had granted relief to the defendant only to be second-guessed by the justices.

The most high-profile was this week's Miranda ruling, in which the court held on a 5-4 vote that a suspect's silence during a police interrogation did not invoke his right to silence. Berghuis v. Thompkins, 2010 DJDAR 8047.

Pro-defendant rulings in habeas corpus cases that are subsequently reversed by the high court are traditionally associated with the 9th Circuit, especially when the court's liberal figurehead, Judge Stephen Reinhardt, authors the opinion in question.

Due to its size and larger caseload, the 9th Circuit always takes up a greater proportion of the Supreme Court's docket than other circuits. It's too early to say what the 9th Circuit's reversal rate will be this term as only four of the 14 argued cases have been decided. Of those, three were reversals.

Kent S. Scheidegger, legal director of the conservative Sacramento-based Criminal Justice Legal Foundation, said it was "quite possible" that the 6th Circuit will, for this term, take the 9th Circuit's mantel as the circuit most at loggerheads with the Supreme Court - at least in terms of habeas corpus cases.

Although overall, the number of 6th Circuit cases under review was fewer than the number of 9th Circuit cases, it is more noteworthy because the circuit is smaller than the 9th, he added. "To have that many reversals is even more significant than it would be for the 9th," Scheidegger said.

It's tough to make assessments about the 6th Circuit's reversal rate over several terms because the Supreme Court does not often review more than a handful of its cases each term. Last term, the justices reversed five out of five cases, but in the 2007-2008 term, the court only reviewed three 6th Circuit cases and reversed two.

As for why the Supreme Court suddenly became interested in 6th Circuit habeas rulings, court-watchers say part of the reason is that Michigan Solicitor General Eric Restuccia went to great lengths to flag the issue in his briefs. Of the five 6th Circuit habeas cases decided this term, three were out of Michigan.

June 5, 2010 at 11:51 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Noting the Sixth Circuit poor habeas record when SCOTUS notices:


That's what happens when you have judges who rule based on how they feel the law should be rather than what it is. It's one thing to be liberal politically; it's quite another to be liberal judicially. Unfortunately, the Sixth Circuit has a group of judges in the latter category that mess everything up - they should have run for Congress instead of being judges.

Posted by: Matt | Jun 7, 2010 10:52:28 AM


The conservative wing also plays well at that game. The number of conservative results-oriented decisions couched in legal terms is positively mind-boggling. If you have any doubt, take a look at their last en banc election ruling, authored by Sutton and joined by every Republican appointee on the circuit. It was reversed unanimously in a one-page per curium by the Supreme Court.

I could be wrong, but I don't even think the Ninth has managed the unanimous, one-page per curium reversal.

Posted by: Res ipsa | Jun 7, 2010 1:17:02 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB