In another round of bad headlines for the Sixth Circuit, the ABA Journal notes that it has been reversed by the Supreme Court in 31 out of the last 38 cases. That places the reversal rate at 81.6%, higher than even the Ninth Circuit at 78.1%. We have addressed similar articles from the ABA Journal and the New York Times at length, and found that claims of dysfunction tended to be exaggerated. But the current article takes a more analytical approach. It quotes from our own Pierre Bergeron, and notes that when one takes into account that a Supreme Court reversal often effectively affirms or reverses multiple circuits, the rates of the Sixth and Ninth drop dramatically (to 66.7% and 68.2%). By that method, the Sixth Circuit’s recent reversal rate is not much higher than that of the First Circuit.
So, in large measure, it’s a question of perspective. Has the Sixth Circuit been reversed a fair amount lately? Yes. But what does that tell us, given that in many cases it was siding with the views of several of its sister circuits? Probably not a whole lot. Given the small number of cases involved, and the fact that the Sixth Circuit had a reversal rate of just 42% from 2004-2007, perhaps this is more of a statistical fluke than anything. Or it could stem from a disproportionate amount of habeas cases that have been accepted by the Supreme Court. Interestingly, a great many of the Sixth Circuit decisions granting habeas relief, both those accepted and not accepted in the Supreme Court, originate in Michigan. As the ABA Journal article picks up on, Michigan prosecutors are complaining to the Supreme Court about the increased scrutiny.