Is The Sixth Circuit On A “Losing Streak”?

Comparing the court to a sports team, the Cincinnati Enquirer announced the “U.S. 6th Circuit Court of Appeals on 0-15 losing streak,” reporting that the Supreme Court has now reversed fifteen cases in a row from the Sixth Circuit.  The article calls this a “poor showing,” but cannot find any pattern in the cases.  In death penalty cases, the Sixth Circuit affirmed execution in two, but in three it held execution improper.  The Supreme Court reversed each time.  Though the circuit’s  “liberal”  judges were more likely to be reversed, the article reports that “almost all of the appeals court’s 15 active judges were on the wrong side of at least one overturned decision.”  This blog has covered many of these cases, see here, here, and here.  Unable to figure out if the losing streak is meaningful, the article quotes Judge Martin’s comment that “I don’t think you can read anything into it.”

It is hard to see how the 0-15 record is a meaningful indicator of the Sixth Circuit’s jurisprudence:  the Supreme Court reviews only about one in a thousand of the 4,400 appeals before in the Sixth Circuit each year.  Other statistics, collected by the judiciary, are more significant.  For example, reversal rates (reflecting the quality of the guidance given to district courts) place the Sixth Circuit at the average among the circuits with a 16% overall reversal rate.  Unfortunately, the Sixth Circuit is well below average on the time it takes to decide appeals.  Nationally, appeals are decided in 11.7 months, but the Sixth Circuit currently takes around 15.5 months – only better than the Ninth Circuit’s 16.3 months.  The other circuits average around 10 months.  Some scholars also look at productivity to measure the circuits, including the number of signed opinions per judge.  By that standard, the Sixth Circuit’s 51 signed opinions per judge is very close to the national average of 55.

Like other legal commentators, the article speculates that the reversal rate is attributable to  certain disagreements between judges that have been well-publicized.  But it is hard to see any link between that and the circuit’s apparent inability to predict how the Supreme Court will decide on a close question.  At this point, it seems unlikely that the “losing” streak is anything but a statistical anomaly.