As the first Monday in October is right around the corner, it is appropriate to take another look at how the Sixth Circuit has fared recently at the U.S. Supreme Court. A recent article in BNA provides an interesting starting point for that discussion. The article takes a novel view to considering how much the Supreme Court actually reverses the circuit courts, filtered through the lens of circuit splits. In other words, if three circuits are on one side of a split, and two on the other, when the Supreme Court sides with the latter, it has “reversed” three circuits. The article thus proposes a “full reversal rate,” which measures the reversal rate of all circuits that are aligned with the side that the Supreme Court reverses, and then it measures how the various circuits fared under that approach as well as “traditional” reversals. Under both the full and traditional approach to reversal rates, the Sixth Circuit ended up second to the Ninth Circuit with the distinction of the most reversed circuit. At the same time, however, the data reveals that most of the circuits are fairly close to the Sixth in terms of both the full and the traditional reversal rates.
Another interesting aspect of the data surveyed by the authors includes the percentage of agreements between circuits in their rulings. As a piece of cocktail hour trivia, the Sixth Circuit over the past five years is most aligned in its opinions with the Fifth Circuit and least aligned with the Second Circuit. If anyone has any hypotheses as to why that may be the case, I would certainly enjoy hearing them.
As the Supreme Court term gets underway, we will certainly monitor how the Sixth Circuit’s cases are faring, and in particular the recent health care ruling.
