How will the government shutdown affect cases in the Sixth Circuit? (with updates)

By Lauren Kuley and Trane Robinson on Posted in News and Analysis

Under the Constitution, the federal government runs on congressional appropriations.  But Congress has not passed funding beyond October 1, thus the government is “shut down.”  Federal courts generally and the Sixth Circuit particularly have proceeded apace without new funds.  But the federal judiciary’s coffers have run dry.  As of yesterday, October 20, the courts entered “Phase II” of the shutdown.  That means “federal courts will maintain limited operations necessary to perform the Judiciary’s constitutional functions.”  The Anti-Deficiency Act directs courts to continue to perform mission critical or “essential work.”

How will Phase II affect us Sixth Circuit practitioners?  The short answer is it largely will not.  The Sixth Circuit, for now, “will remain open for business as usual,” states the court’s official order, consistent with its “constitutional duty to hear and resolve cases, even in the event of a lapse in funding.”  Indeed, the court is sitting in Cincinnati this week for dozens of oral arguments, as scheduled, docketing new cases and issuing opinions.

The same goes for litigants:  “All filing deadlines” remain, according to the court’s notice.  Extensions are being handled, as usual, case-by-case.  Slow downs may be more likely in cases involving the federal government as a litigant.  Other court units, like the Law Library and Circuit Executive, are implementing furloughs.  Though essential staff continue to work, they will not be paid until Congress acts.  (The Government Employee Fair Treatment Act, 31 U.S.C. §1341(c), ensures they will be paid eventually.)  We thank these public servants for their selfless efforts. 

The Clerk of Court, Kelly L. Stephens, kindly provided us a quote, which we are pleased to pass along:

Pursuant to the Court’s general order, the Sixth Circuit Clerk’s Office remains operational during the lapse in appropriations in support of the Court’s constitutional duty to hear and resolve cases. Regular case processing, including opening new cases, is considered an excepted activity to the requirements of the Anti-Deficiency Act. 31 U.S. Code § 1341. Oral arguments scheduled to be heard will go forward unless the panel for a case directs otherwise, and all filing deadlines must be met.

To the court’s credit, it appears shutdown Phase II will barely impact litigants and the general public.  More updates will follow on this Blog as they come.

Ten Years of En Banc Decisions:  a Breakdown by Panel Composition.

By Colter Paulson on Posted in Uncategorized

Our post a few weeks ago discussed the subject matters more likely to attract en banc review, and this post will talk about the effect of panel composition on en banc review.  The chief reason to worry about who is on your panel is because they will be deciding your case. The federal courts of appeals courts face unfortunate, but likely inevitable, correlations between case outcomes and political party affiliation.  But does the original political appointment of panel members also help predict what cases might trigger en banc review in the Sixth Circuit?

Of course it does.  Republican-appointed judges have been a majority on the Sixth Circuit for many years, so we looked to see if the en banc court accepts more appeals from panels with a majority of Democrat-appointed judges.  We found that even though about 70% of cases have panels with a majority of Republican-appointed judges, a nearly 70% of the cases taken by the en banc court have been from panels with a majority of Democrat-appointed judges.  Most of the en banc cases taken to overrule a decision from a Democratic panel involved a dissent by a Republican-appointed judge.  Dissents also played an important, though smaller, role in triggering en banc review from Republican-majority panels. 

Given the Republican majority, and the political nature of the cases the Circuit takes en banc, it should be no surprise that, with a handful of exceptions, the vast majority of en banc decision by the Sixth Circuit in the last ten years have a stark divide between Republican-appointed judges supporting the court’s decision and Democrat-appointed judges signed on to the dissent.  That said, five of the en banc dissents were truly bipartisan, and Judge Gibbons dissented eight times from her like-party colleagues.  In addition, the Circuit also accepted en banc review of decisions by some judges more than others.  Judge Moore stands out here, consistent with her position as the Circuit’s dissenter-in-chief.  She was on the original panel in nineteen cases, which is about half of the total cases the en banc court accepted over the last ten years.  The next most reversed judge, Judge Clay, was on the original panel in a quarter of the cases (nine), and Judge Stranch was next (six).  Also worth noting is Judge Readler’s distinction as being the only judge to file a solo dissent from an otherwise-unanimous en banc court—last year’s decision in NRSC v. FEC, which is now before the Supreme Court. 

Two en banc decisions in the last ten years were unanimous, both sentencing cases, United States v. Havis and Williams v. United States. By contrast, over 40% of the Supreme Court’s decisions were unanimous over the same time frame. That’s not to say the Sixth Circuit is more political than the Supreme Court. Most lawyers would agree the federal appellate courts (even the Ninth and Fifth circuits) are far less overtly-political than the Supreme Court in their day-to-day decisions.

School may prohibit “Let’s Go Brandon” sweatshirt, Sixth Circuit holds

By Trane Robinson on Posted in Case Updates, News and Analysis, Recent Cases, Supreme Court, Uncategorized

“Let’s Go Brandon” was the message on the sweatshirts two siblings wore to middle school.  Everyone knows what that phrase means – including their teachers, so the school required the boys to change clothes.  That left their mother unhappy; she sued the school for silencing her kids.

This week, a divided Sixth Circuit panel sided with the school.  Judge Nalbandian had the majority opinion, which Judge Moore joined, and Judge Bush dissented.  This decision marks an important contribution to the student-speech cases, at a time when like cases continue to arise.

Beginning with Tinker—the famous case of students wearing armbands to protest the Vietnam War—the court explained that students’ at-school speech rights are not equal to their extracurricular rights.  For example, under Fraser, public schools can punish vulgarity to advance their pedagogical missions in ways that police officers in public cannot.  The court asked first whether “Let’s Go Brandon” qualifies as “vulgar” and, second, whether schools may silence vulgar political speech.

All agreed that students have no right to use or display the F-word at school, but “Let’s Go Brandon” is not itself vulgar.  Rather, the phrase is a euphemism standing in for a foul word.  The majority decided that “a school may regulate speech that conveys an obscene or vulgar message even when the words used are not themselves obscene or vulgar.”  The message, not the words, inform the inquiry – plus a dose of judicial “deference” to school administrators’ judgment.  The euphemism, then, was vulgar enough to restrict.

But was it too political to restrict?  After all, political discourse is the Free Speech Clause’s core concern.  No, the majority answered, because the “vulgarity trumps the political aspect of speech at school.”  And with that, the court concluded the school reasonably exercised its power to “categorically prohibit” vulgar speech.

Judge Bush disagreed: “The liberty to criticize the president is not a freedom that stops at the schoolhouse door.”  “Let’s Go Brandon,” Judge Bush reasoned, is non-vulgar, “purely political speech,” a “cheekily expressed criticism” of the then-sitting president.  Judge Bush characteristically reasoned from history, highlighting vignettes from the past such as President John Adams’ mocking nickname, “His Rotundity.”

It followed that the Tinker standard should apply, not Fraser’s vulgarity exception to that standard.  And Tinker requires the school to show disruption to limit speech, a condition absent from this case.  The majority and dissent squabbled over a doctrinal point of real-world import.  If Fraser’s vulgarity exception erases Tinker’s disruption requirement, then “who decides” what’s vulgar?  To the majority, deference to administrators is in order, provided they act in good-faith (i.e., viewpoint neutral); but in Judge Bush’s dissenting view, discretion tempts censorship, so political speech traditions require “exceptions to Tinker [to] be construed narrowly and applied cautiously.”

Bright-line principles elide difficult First Amendment cases like this.  And Judge Bush highlighted intra- and inter-circuit tension in the precedents.  These points raise the specter of en banc or Supreme Court review.  But for now, the panel-majority’s word is last: vulgarity turns on message, not the words that convey it, and school officials, not courts, decide what’s vulgar.  At Tri County Middle School in Howard City, Michigan, the meme phrase “Let’s Go Brandon” crosses the line.

Ten Years of En Banc Decisions in the Sixth Circuit

By Colter Paulson on Posted in En Banc Watch, News and Analysis

We have looked through the last ten years of en banc decisions in the interest of the perennial question of what makes the Sixth Circuit more likely to grant a petition for en banc review.  But first a word on how many cases the judges accept . After increasing to six en banc cases per year in prior decades, and occasional years with just one case, the Sixth Circuit has decided a steady stream of 3-4 cases per year.  Thirty-eight cases over the last decade.  So what kind of cases do they pick from over a thousand en banc petitions each year?  It may come as no surprise the the larges group, nearly a third (32%) of the en banc decisions, address unresolved issues in criminal cases—mostly in sentencing, which is an evergreen source of difficult legal questions.

Over a quarter of the decisions (26%) are habeas cases.  Many of them are death penalty cases, or other cases involving serious crimes, and they appear to have been taken to ensure the circuit does not push the boundaries the Supreme Court has placed on habeas relief under AEDPA.  Readers may remember that the Sixth Circuit had, for a short time, more cases reversed than any other circuit because the Supreme Court kept reversing grants of relief in habeas cases.  But the Sixth Circuit has largely (though maybe not entirely) stopped innovating in habeas cases, and so has been reversed much less often.  The crown for the most-reversed circuit has fallen back to the Ninth, though the Fifth is making a strong case for itself.

The Sixth Circuit also frequently accepts full-court review of constitutional cases against the Government, which comprised 29% of the en banc cases in the last ten years.  The circuit has focused its those decisions on the First Amendment (both free speech and the Establishment Clause), the Second Amendment, and abortion.  The circuit has also been consistently choosing cases that address current issues of great (and often current political) importance, such as the mask mandate, prayer and government, election law, and abortion restrictions.  Perhaps the best advice for getting en banc review in the civil context is to be litigating something a particularly contentious constitutional issue in the culture wars.

What about private civil litigation?  Not much luck there.  By our count, the Sixth Circuit has only granted review in five such cases in the last ten years, and most of those deal with interesting questions of statutory interpretation like ERISA, the ADA, and Title XI.  The circuit appears uninterested in cases just because they involve big-ticket or bet-the-company litigation—requiring parties to focus their en banc petitions on the importance of the issue itself and the existence of circuit conflicts instead.  In fact, the only one that qualifies as big-ticket litigation is the Circuit’s most recent en banc decision, Speerly v. General Motors, LLC, 143 F.4th 306 (6th Cir. June 27, 2025) (en banc), which vacated a multi-state class certification of over two-dozen state subclasses.  Like the other subjects of en banc cases, the advent of state-specific subclasses is an important development many circuits are wrestling with right now.

In a later post, we’ll talk about other ways the Circuit selects case for en banc review.

Sixth Circuit Practice Institute – Oct. 29, Cincinnati

By Lauren Kuley on Posted in Learned Sixth, News and Analysis

On October 29 in Cincinnati, the Federal Bar Association is hosting the Sixth Circuit Practice Institute.  The Institute is planned in coordination with the Sixth Circuit and features a terrific line-up.  Chief Judge Jeffrey Sutton, eight other Sixth Circuit judges, and several District Court judges will speak.  This special single-day CLE will provide a unique opportunity to discuss practice issues in the Sixth Circuit and hear directly from the bench during a year when the judicial conference is judges-only.

A detailed brochure and agenda is here.

You can register here.

The program also includes a luncheon and cocktail reception.  The keynote luncheon address will be given by Commissioner Kalpana Kotagal, who serves on the U.S. Equal Employment Opportunity Commission. 

Panel topics include:

  • How a Judge Decides a Case
  • Artificial Intelligence in Advocacy and Judging
  • Eyes on the Supreme Court
  • Criminal Justice Act Training & Introduction to the Clerk’s Office
  • Dialogue between Circuit and District Judges
  • Judges’ Views on Effective Advocacy
  • Behind the Scenes at the Staff Attorney’s Office

This is a fantastic way to get to know the Circuit! We’re looking forward to it.

The Second Amendment Permits The Disarming of “Dangerous” Felons

By Colter Paulson on Posted in Case Updates, Recent Cases, Supreme Court

Each year, more than 8,000 people are convicted for unlawful possession of a firearm under 18 U.S.C. § 922(g).  About 90% of those cases arose from gun possession by a felon.  Firearm prosecutions are reportedly “the third most common federal offense.”  Such prosecutions are even more common in some districts, including the Middle District of Tennessee where over 42% of cases involve § 922(g).  Section 922(g) is the law that prohibits felons, and certain other groups, from possessing firearms.  The Sixth Circuit has now taken a big step in defining the constitutionality of the law, holding that a person only loses his Second Amendment rights under § 922(g) by committing a crime that involves danger to others or the community. 

As our readers know, Bruen held that government regulation of conduct that “the Second Amendment’s plain text covers” must be “consistent with this Nation’s historical tradition of firearm regulation.”  That methodological approach to Second Amendment cases represented an express rejection of the courts of appeals’—including the Sixth Circuit’s—consensus “two-step test,” where courts would often balance the government’s prosecutorial interest against the defendant’s individual-liberty interest.  Put (over)simply, the Supreme Court replaced interest balancing with historical inquiry. 

Continue Reading

Sixth Circuit Explores the General Law of Wrongdoership

By Squire Patton Boggs on Posted in Case Updates, Learned Sixth, News and Analysis, Recent Cases

The “maxim that wrongdoers may not profit from their wrongs” is having a big week at the Sixth Circuit.  In two cases—one about ERISA, the other about restitution—sons betrayed their mothers for financial gain.  The facts in these cases are devastating, though the legal issues are fascinating nonetheless.  In short, the murderer lost, but the fraudster won.

ERISA cases, let’s face it, are not known for intrigue.  Standard Insurance Co. v. Guy is the outlier.  Guy was the beneficiary of his mother’s employment benefits.  Guy murdered his parents and had the audacity to try to cash in on their ERISA benefits.  Tennessee has a “slayer statute” that ensures “a killer cannot profit from the killer’s wrong.”  ERISA, however, casts a broad preemptive net, superseding “any and all State laws … relate[d] to any employee benefit plan.”  The Sixth Circuit declined to decide whether ERISA preempts Tennessee’s slayer statute—following the path of the Supreme Court in Egelhoff v. Egelhoff.

Continue Reading

In Rare Summer Opinion, Supreme Court Follows Sixth Circuit’s Lead

By Squire Patton Boggs on Posted in Case Updates, News and Analysis, Recent Cases, Supreme Court

In Department of Education v. Louisiana, the Supreme Court issued a rare August opinion to maintain two preliminary injunctions that block the Department of Education’s new rule.  That rule expands Title IX to prevent sexual-orientation and gender-identity discrimination.  State coalitions brought challenges; district courts in Louisiana and Kentucky enjoined the rule during the litigation; the Fifth and Sixth Circuits denied the government’s requests to stay the injunctions, nor would the Supreme Court intercede for the government.

All the Justices agreed that aspects of the rule warranted interim relief, most centrally the “provision that newly defines sex discrimination” to include sexual-orientation and gender-identity discrimination.  But because the district courts enjoined the entirety of the rule, the scope of relief proved divisive.  A narrow majority agreed to leave the broad injunctions in place, while four Justices in dissent argued to sever the suspect aspects of the rule and allow the remainder of the rule to take effect.  With emphasis on the “emergency posture,” the majority explained that the government had not carried its burden “on its severability argument.”

Continue Reading

Divided Sixth Circuit Panels Find Tennessee Gender Laws Constitutional

By Squire Patton Boggs on Posted in Case Updates, News and Analysis, Recent Cases, Supreme Court

A Tennessee law prevents changing one’s designation of sex on his or her birth certificate, even if that person has changed gender identity on other official documents as in life.  In Gore v. Lee, the Sixth Circuit affirmed this law’s constitutionality.  This decision is best understood in tandem with another gender-rights case from Tennessee:  L.W. v. Skrmetti.  Last year in L.W., the court upheld Tennessee’s limitation on minors’ ability to obtain sex-transition intervention.  The same divided panel decided both cases—with Chief Judge Sutton writing, Judge Thapar joining, and Judge White dissenting.

Let’s unpack both decisions, beginning with the recent birth certificates case.  All the States record data about their newly born citizens.  Although Tennessee does not condone changes to the sex assignment on a birth certificate (save for recording errors), the court surveyed other States that allow it on varying conditions.  In this Circuit, for example, Kentucky requires surgery first, Ohio requires a medical declaration, and Michigan permits birth certificate amendment “based solely on applicants’ declaration of their current gender identity.”

Continue Reading

LexBlog