Feb. 20, 2011

 Supreme Court has reversed every decision since 2008, including five death penalty cases

The U.S. 6th Circuit Court of Appeals in Cincinnati is one of the most powerful courts in the nation, but these days it’s suffering through a major slump.

The court owns the longest losing streak in the country over the past two years at the U.S. Supreme Court, which reviews decisions and corrects mistakes made by the nation’s top appeals courts.

The Supreme Court has examined 15 rulings from the 6th Circuit since 2008 and has thrown out every one of them.

In each case – from death penalty appeals and tax disputes to disagreements over election law – the Supreme Court found critical errors that tainted the 6th Circuit’s decision.

“It’s a bit surprising to see 15 reversals in a row,” said Michael Solimine, a University of Cincinnati law professor who studies the federal courts.

Some 6th Circuit judges are surprised, too. But they say they’re doing their best and are trying to take the rejection in stride.

“Getting reversed by the Supreme Court, some people these days think, is a badge of honor,” said Gilbert Merritt, a semi-retired senior judge and one of the 6th Circuit’s most liberal members. “It depends on your point of view.”

The 6th Circuit’s performance matters because the court handles about 2,500 federal appeals a year from Ohio, Kentucky, Tennessee and Michigan – the vast majority of which never make it to the Supreme Court.

The consequences of getting those decisions wrong can be severe and, in some cases, can literally mean the difference between life and death.

Three of the 15 overturned cases involve convicted killers who were spared execution by the 6th Circuit only to have the Supreme Court send them back to Death Row.

Two others were denied by the 6th Circuit but later won reprieves from the Supreme Court.

The 6th Circuit’s other overturned cases include a dispute over voter registration laws, an employer retaliation claim and a disagreement about how natural gas companies are taxed.

All of those cases were subject to Supreme Court review because the 6th Circuit, as one of the nation’s 12 regional appeals courts, is one notch below the Supreme Court in the judicial pecking order.

“It’s their place in the system,” said Arthur Hellman, a University of Pittsburgh law professor who studies the appeals courts. “It wouldn’t do them much good to get upset or rail against the Supreme Court.”

The 6th Circuit’s liberal judges were more likely than conservatives to write opinions later reversed by the Supreme Court, but almost all of the appeals court’s 15 active judges were on the wrong side of at least one overturned decision.

Court watchers say that suggests the 6th Circuit’s losing streak isn’t the result of a deep ideological split with the Supreme Court.

Instead, they say, the court just keeps getting the law wrong, especially in cases of prisoners challenging their convictions and sentences. Those cases accounted for eight of the Supreme Court’s 15 reversals.

“It clearly sends a message to the 6th Circuit that we are watching you,” Hellman said.

He said the 6th Circuit’s 0 for 15 run could be a symptom of more significant flaws in the court’s decision-making process if the reversals continue.

But he warned against reading too much into the streak just yet.

“A unanimous decision by the Supreme Court doesn’t necessarily correlate with the circuit court being out to lunch,” Hellman said. “It doesn’t necessarily reflect on the ability or competence of the judges.”

A poor showing

In some ways, the odds are stacked against the 6th Circuit from the outset.

That’s because the Supreme Court only reviews the cases it deems worthy, usually less than 100 a year out of some 30,000 appeals court decisions nationwide. Sometimes the goal is to resolve conflicting rulings in the lower courts and sometimes it’s to answer big constitutional questions.

Either way, the chances for a reversal are good because the Supreme Court justices wouldn’t take those cases if they thought the appeals court resolved all the issues the first time around.

“It’s not a random sample of cases that they hear,” Solimine said. “They decide what they want to decide.”

And about 70 percent of the time, they decide the lower court got it wrong and reverse the decision.

But even by that measure, the 6th Circuit’s batting average is poor.

An Enquirer analysis found that the other 11 regional appeals courts each had at least one decision upheld or partially upheld by the Supreme Court in the past two years.

California’s 9th Circuit, the nation’s largest and most liberal, led the way with 31 reversals and has butted heads for years with the increasingly conservative Supreme Court. But even the 9th Circuit was upheld seven times and had four split decisions.

The 6th Circuit, which had the second most reversals, hasn’t won a case since 2007.

The 6th Circuit’s chief judge, Alice Batchelder, did not respond to an interview request.

But Boyce Martin, a former chief judge who still sits on the court, said he’s not concerned because he sees no pattern in the cases the Supreme Court overturns.

Unlike the 9th Circuit, the 6th Circuit is not engaged in a philosophical duel with the Supreme Court. The 6th Circuit has, in fact, become far more conservative in recent years following the arrival of eight judges appointed by President George W. Bush.

“I don’t think you can read anything into it,” said Martin, who joined the court under President Carter in 1979. “There’s no pattern whatsoever. If you look at those cases, they’re splattered from here to yon.”

Jonathan Adler, a Case Western Reserve University law professor, said the relationships between judges on the 6th Circuit might have something to do with their bad track record during the past two years.

The judges bickered publicly a few years ago over the death penalty, among other things, and Adler said lingering hard feelings could contribute to mistakes today.

He said that’s because judges rely on each other to talk out tough issues and to catch potential errors before they write their opinions. If 6th Circuit judges don’t do that, they may be prone to more mistakes.

“The 6th Circuit went through a period where the judges really didn’t play well together,” Adler said. “I think the temporary breakdown in collegiality and trust hampered the ability of the court to keep itself in line with Supreme Court precedent.”

Room for debate

Merritt chalks up the streak of reversals to a more practical problem: Sometimes judges just disagree when they try to divine the meaning of thousands of government regulations and laws.

“Congress has passed a lot of laws in my 35 years on the bench, and a lot of those laws aren’t clear,” Merritt said. “It’s an issue that’s debatable among judges.”

Perhaps the best example of that debate is the case of Gary Cone, a convicted killer in Tennessee whose case has bounced between the 6th Circuit and the Supreme Court three times in the past decade.

The first two times, a three-judge panel that included Merritt and two Republican-appointed judges threw out Cone’s death sentence because of mistakes made during his trial.

The Supreme Court reversed the 6th Circuit and reinstated Cone’s death sentence both times.

Cone returned to the 6th Circuit for a third try in 2008 and this time the Republican judges outvoted Merritt 2-1 to uphold Cone’s death sentence, just as the Supreme Court had done twice before.

So what did the Supreme Court do when it got a third crack at the case? It reversed the 6th Circuit yet again, declaring Cone’s death sentence should be overturned after all.

Merritt said the Cone case shows how difficult and confusing decisions can be for any judge, whether they sit on the 6th Circuit or the Supreme Court.

The difference is the Supreme Court always gets the last word.

But Merritt said that doesn’t mean the Supreme Court is always right – or that the 6th Circuit is wrong every time it gets reversed.

“The Supreme Court is only final because it is final. It’s not final because it has an excessive degree of wisdom over everyone else in society,” Merritt said. “Just because the 6th Circuit gets reversed, it doesn’t mean the 6th Circuit has lost its mind.”


6th Circuit’s losing streak

The U.S. Supreme Court reversed 6th Circuit decisions in the following 15 cases during its 2008, 2009 and 2010 terms.*

Crawford v. Metropolitan Government of Nashville (Tenn.): A school district employee filed a civil rights lawsuit, claiming she was sexually harassed before she was fired. The 6th Circuit ruled against her because she failed to make the accusation until internal investigators questioned her.

Cone v. Bell (Tenn.): A death row inmate asked for a new trial, but the 6th Circuit concluded the claims he raised were not subject to federal court review.

Harbison v. Bell (Tenn.): The 6th Circuit said a federally-appointed lawyer could not represent a death row inmate in state clemency proceedings.

Arthur Andersen v. Carlisle: The 6th Circuit refused to hear this tax-related dispute after concluding it did not have the authority to do so.

Bobby v. Bies (Ohio): A convicted killer claimed he could not be executed because the Supreme Court outlawed the execution of the mentally retarded. Prosecutors wanted a full hearing to evaluate his mental state, but the 6th Circuit said no because he already had been found mentally retarded and a new hearing would amount to double jeopardy.

Smith v. Spisak (Ohio): The 6th Circuit overturned a death sentence after concluding the convicted killer’s lawyers performed poorly and the judge made mistakes during the trial.

Jerman v. Carlisle (Ohio): A debt collector may have broken the rules when demanding payment, but the 6th Circuit threw out a lawsuit against the firm after concluding it had simply made a mistake.

Berghuis v. Smith (Mich.): The 6th Circuit ruled that a man sentenced to life in prison for murder did not get a fair trial because the pool from which jurors were chosen had too few African-Americans.

Berghuis v. Thompkins (Mich.): A convicted killer serving a life sentence won an order for a new trial after the 6th Circuit concluded police questioned him even though he did not waive his right to remain silent.

Levin v. Commerce Energy (Ohio): The 6th Circuit found that a dispute among natural gas companies over how Ohio taxes them could be heard in federal court, rather than state court.

Renico v. Lett (Mich.): The 6th Circuit threw out a murder conviction after deciding the accused man should not have faced a second trial after his first one ended in a mistrial.

Ortiz v. Jordan (Ohio): A woman sued prison officials and won a jury verdict after claiming she was sexually assaulted in prison. The 6th Circuit threw out the verdict after concluding the prison officials could not be individually sued under state law.

Thompson v. North American Stainless (Ky.): A man claimed his employer fired him in retaliation for a harassment complaint his fiancee filed against the company. The 6th Circuit threw out his suit, saying only the actual victim of the harassment could claim retaliation.

Bobby v. Van Hook (Ohio): The 6th Circuit threw out the death sentence of a convicted killer after deciding he did not receive effective assistance from his lawyers.

Brunner v. Ohio Republican Party (Ohio): The 6th Circuit ordered Secretary of State Jennifer Brunner to provide county elections boards with lists of new voter registrants whose data doesn’t match driver’s license and Social Security data.

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