Not only are Sixth Circuit opinions discussed by other circuits, Sixth Circuit concurrences and dissents—which we previously found to occur in the Sixth Circuit at twice the average rate—are too. Over a recent approximately 18-month period (May 2013 to Sept 2014) separate writings from Sixth Circuit decisions have been cited 47 times by federal courts outside the Sixth Circuit, with 17 of the citations coming from fellow courts of appeal, primarily the Tenth (4), Second (3), and Fourth (3) circuits.
Judges Clay and Sutton tie for the most separate writing citations by an appellate court (three each) and for the most separate writing citations overall (six each). Judge Sutton was nearly always (5 times) cited in concurrence, while Judge Clay was more often cited in dissent (4 times). Other highly cited judges were Judge Moore (cited five citations, mostly concurrences), Judge Boggs (four citations, mostly dissents), and Judge White (four citations, mostly concurrences). District judges sitting by designation were responsible for three of the 47 citations. When considering individual judges’ citation counts, it is important to keep in mind the relative lengths of judges’ tenure, since judges who have served for longer will have had more opportunities to write separately.
All but two of the citations came from judges currently on the bench, perhaps indicating that separate writings remain relevant for relatively short periods of time. A separate opinion is likely to be of interest to other courts while the controversy that generated it remains “live,” but once a question is definitively resolved—whether by the Supreme Court, Congress or other developments—it becomes highly unlikely that a prior dissent would be cited on that issue. Even if the resolution followed the separate opinion, future decisions will cite the resolving SCOTUS case or statute. On the other hand, majority opinions (unless reversed or superseded) will continue to be cited.
Some attorneys question the value of separate writings in appellate opinions, but as this brief empirical survey demonstrates, such writings can resonate well beyond the Circuit itself. Although not as frequently cited as majority opinions, we can see that even the Sixth Circuit’s separate writings can impact cases before other Circuits.
