With the recent close of the Supreme Court’s October 2015 term, it is a good time to review how the Sixth Circuit performed over the course of the term. The Supreme Court reviewed 87 cases this term, but took only four cases from the Sixth Circuit. Of those four, three were reversed—an average reversal rate among the circuits in the high court (although, of course, the sample size is small). Though there was a brief aberration of high Supreme Court reversal rates for the Sixth Circuit that was widely reported, the last two terms have seen the circuit’s reversal rate go back in line with other circuits.
The cases themselves are pretty standard fare. We reported previously on Simmons v. Himmerlerich, where the Supreme Court affirmed the Sixth Circuit’s decision that the “judgment bar” of the FTCA does not bar a second suit after the first claim was dismissed under that statute’s “exceptions” provision. And in Sheriff v. Gillie, the high court reversed to hold that even if special counsel appointed by the Ohio Attorney General are not “state officers,” their use of official letterhead to collect debts on the Attorney General’s behalf does not create a misrepresentation in the collections efforts.
The Supreme Court also reversed in two AEDPA cases, White v. Wheeler, which upheld courts’ ability to strike jurors that seem unwilling to apply the death penalty, and Woods v. Etherton, a per curiam opinion which essentially found that the Sixth Circuit should have been more deferential to the state courts on a factual issue. Some have written that these cases show that the Sixth Circuit is still pushing against the limits of AEPDA, but two habeas reversals alone does not seem to support such conclusions. The Sixth Circuit has internalized the guidance received from the Supreme Court in prior habeas cases, reflecting the fact that only two such cases were considered by the Court this term.