The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The U.S. Court of Appeals for the Sixth Circuit has compiled an unenviable record of reversals in habeas cases under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), including a fair number of summary reversals (as I have noted many times on this blog). In a recent dissent from denial of an en banc petition in Cassaon v. Shoop, Judge Griffin of the Sixth Circuit noted twenty-two habeas reversals in the past twenty years. But is the Supreme Court losing its appetite for reversing the Sixth Circuit?
Back in June, the Supreme Court denied certiorari in the case that prompted Judge Griffin's comments. Justice Thomas dissented (joined by Justice Alito), noting he would have summarily reverse the Sixth Circuit.
Today the Court denied another petition for certiorari seeking review of a Sixth Circuit habeas petition grant in Shoop v. Cunningham. Again, Justice Thomas dissented (joined by Justices Alito and Gorsuch). An again Justice Thomas argued the case warranted summary reversal.
Justice Thomas' opinion expresses frustration with his colleagues' alleged unwillingness to correct the Sixth Circuit, as well as the lower court's unwillingness to take such cases en banc. His opinion concludes:
By denying certiorari, the Court once again permits the nullification of its jurisprudence. Just a few months ago, I dissented from the Court's refusal to correct a flagrant misapplication of AEDPA by the Sixth Circuit. See Shoop v. Cassano, 596 U. S. ___ (2022) (opinion dissenting from denial of certiorari). Today, the Court denies review of a case just as flagrant, if not more so. We should not shirk our responsibility to correct classic AEDPA abuses, especially when a lower court brazenly commits errors for which we have repeatedly reversed it. See Cassano v. Shoop, 10 F. 4th 695, 696–697 (CA6 2021) (Griffin, J., dissenting from denial of rehearing en banc) (collecting 22 cases in which this Court reversed the Sixth Circuit "for not applying the deference to state-court decisions mandated by AEDPA," including 12 summary reversals).
That said, while I disagree with the Court's newfound tolerance for recidivism, primary responsibility for the Sixth Circuit's errors rests with the Sixth Circuit. That court's record of "plain and repetitive" AEDPA error, Parker, 567 U. S., at 49, is an insult to Congress and a disservice to the people of Michigan, Ohio, Kentucky, and Tennessee. Federal habeas review imposes "profound societal costs," "frustrat[ing] both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Calderon v. Thompson, 523 U. S. 538, 554, 555–556 (1998) (internal quotation marks omitted). It also "disturbs the State's significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority." Richter, 562 U. S., at 103 (internal quotation marks omitted). These problems are serious enough even when courts carefully observe the limits that Congress and this Court have laid down. When a lower court wields its habeas jurisdiction in overt defiance of those limits, the affront to federalism and the rule of law becomes intolerable.
The Sixth Circuit must do better, with or without this Court's help. Unfortunately, the Sixth Circuit's habeas jurisprudence suggests that certain circuit judges' "taste for disregarding AEDPA," Rapelje v. Blackston, 577 U. S. 1019, 1021 (2015) (Scalia, J., dissenting from denial of certiorari), has found its natural complement in other judges' distaste for correcting errors en banc, no matter how blatant, repetitive, or corrosive of circuit law. See, e.g., Issa v. Bradshaw, 910 F. 3d 872 (CA6 2018) (denying rehearing en banc); Mitts v. Bagley, 626 F. 3d 366 (CA6 2010) (same). Of course, reluctance in deploying en banc review is understandable. But only to a point. The Sixth Circuit's habeas problems are well past that point—as evidenced by the depressing regularity with which petitions like this one reach us.
The Court should have delivered that message by summarily reversing the judgment below. Accordingly, I respectfully dissent from denial of certiorari.