As I recently noted in comparing the circuits in response to a recent article in the New York Times (here), the Sixth Circuit consistently has a high percentage of dissenting opinions – about twice the average of the other circuits. This post takes a look at some patterns in the dissenting rates of the twelve Sixth Circuit judges that were active between 2007 and 2011.
The big surprise was that two judges accounted for nearly half of the dissents in the sample. Judge Moore wrote on average nearly four times more dissents than the average of the other judges, and Judge Clay wrote over three times that average. No other judge had even half as many dissents. Judges Gibbons and Cook were at the other end of the spectrum, writing respectively six times and three times less dissents than the average -- just a handful over the course of four years.
Interestingly, Judges Moore and Cole, and to a lesser extent Judges Clay and McKeague, were more likely to dissent from opinions affirming the trial court rather than from opinions reversing the court below. In particular, Judge Moore wrote fifty dissents, but only five to an opinion reversing the decision below. One would expect that a reversal would be more likely to attract a dissent because it is out of the ordinary – 85% of appeals resolved on the merits are affirmed. All of the other active judges on the Sixth Circuit, unsurprisingly, dissent far more often from reversals than from affirmances.
However, this surprising tendency to dissent from affirmances does not translate into a large propensity to reverse overall. Panels containing Judges Moore, Cole, and Clay reversed the decision below only one or two percent more often than the average. Panels that Judge McKeague sat on were actually the most likely to affirm, at five percent more than the average. On the other side, panels with Judge Cook were the least likely to affirm, reversing five percent more than average -- and thus ten percent more than panels with Judge McKeague.
Judge Moore is not only the most likely to write a dissent, but she also wrote by far the most concurring opinions – four times the average of the other judges. (Judge Batchelder was second, with about twice the average number). In addition, Judge Moore sat on more panels that any other judge and authored a much higher than average number of majority opinions.
Some details about this post: The statistics above reflect searches in a Lexis database of opinions written by Judges Batchelder, Martin, Boggs, Moore, Cole, Clay, Gibbons, Rogers, Sutton, Cook, McKeague, and Griffin, and rely largely on the categorizations done by Lexis. The total number of opinions analyzed was 2,673, an average of 56 signed opinions per judge per year. Opinions written by senior and visiting judges were not included, nor are per curium or other unsigned opinions. The relationship between dissent rates and participation by those judges will be discussed in a later post.