In an article about an ethics decision that cleared a bankruptcy judge of misconduct for membership in an exclusive country club alleged to discriminate, Adam Liptak of the New York Times says the Sixth Circuit is an “odd institution” that is “surely the most dysfunctional federal appeals court in the nation.” An article in the ABA Journal echoed the point, asking if the Sixth Circuit is “the Nation’s Most Dysfunctional Appeals Court.” As a frequent practicioner before the Sixth Circuit (and as an adjunct teaching a law school clinic focusing on that court), I feel that sweeping accusation deserves further scrutiny.
Beyond his disagreement with the ethics decision itself, which I will not address, the genesis of Mr. Liptak’s observation is doubtless the public airing of private disagreements between some Sixth Circuit judges in recent years. The most notable disagreements concerned Grutter v. Bollinger and In re Byrd where certain judges accused other judges of ignoring the circuit’s procedures to influence the results in each case. Some have speculated that ideologically-driven review in death penalty cases may be the catalyst for the circuit’s 0-15 record before the Supreme Court over the past few years.
But is there any empirical evidence that the Sixth Circuit is actually dysfunctional as an institution? This post will look at Supreme Court reversal rates, reversal rates for district courts, productivity per judge, the influence of the circuit, the number of dissenting opinions, and the lag time for decisions.
The Sixth Circuit’s current 0-15 record before the Supreme Court is certainly unfortunate. But that was almost certainly a statistical fluke. From 2004 to 2007 – immediately after the events in Grutter and Byrd – the circuit’s success rate in the Supreme Court was an above-average 42%.
The rate that the Sixth Circuit reverses district courts, which reflects the quality of the guidance it gives to those courts, is average at 16%. Productivity per judge, as measured by the number of signed opinions, is also close to the national average of 53.
Another way to evaluate a federal court of appeals is to see how often other circuits cite its opinions. Using this data, Professors Lawrence Lessig and William Landes have found that the Sixth Circuit is tenth (out of the thirteen federal courts of appeal) in its overall influence, and ninth in the average quality of its opinions. These numbers indicate that the Sixth Circuit is within the mainstream of its sister circuits in terms of influence on the overall development of the law.
The Sixth Circuit consistently has a high percentage of dissenting opinions, but this phenomenon dates back well before Grutter and Byrd. Professors Lee Epstein, William Landes and Richard A. Posner found that the dissent rate averaged about 2.8% for all circuits from 1990-2006, with the Sixth Circuit the highest at 4.8% and the Eleventh Circuit the lowest at 1.1%. (The D.C. and Ninth Circuits also tend to have much higher dissent rates closer to the Sixth Circuit’s rate). Another study found that the increased dissent rate in the Sixth Circuit was not confined to ideologically-charged cases, but extended into contract interpretation cases that are unlikely to provoke partisan-influenced dissents.
Nor is it clear that a larger number of dissents is a bad thing. It was the strong dissents to the ethics opinion that drew attention to the ruling. Indeed, the media attention the circuit's decisions receive are often only possible because of the judges’ willingness to actively dissent. The percentage of dissents in all circuits has diminished as the caseload has increased, indicating that judges might write more dissents if they were willing to spare the time. So the high number of dissents in the Sixth Circuit does take up additional resources, perhaps contributing to the Sixth Circuit’s long wait times for decisions – which is currently four months longer than average (only the Ninth Circuit is worse).
The Sixth Circuit is certainly not without its problems, but this quick review of the data suggests that singling the circuit out for criticism as “dysfunctional” is unfair.