The “Most Reversed Circuit” and The Lost Perfect Game
The San Francisco-based 9th U.S. Circuit Court of Appeals, often categorized as too liberal and out of sync with the more conservative U.S. Supreme Court, faces some unusual competition this term for its crown as the most reversed circuit.
Earlier this week, the justices reversed the Cincinnati, Ohio-based 6th Circuit for the seventh time in seven cases (including one summary reversal), meaning a 100 percent reversal rate for the term.
Of those, five, including the summary reversal, were habeas corpus cases in which the appellate court had granted relief to the defendant only to be second-guessed by the justices.
The most high-profile was this week’s Miranda ruling, in which the court held on a 5-4 vote that a suspect’s silence during a police interrogation did not invoke his right to silence. Berghuis v. Thompkins, 2010 DJDAR 8047.
At Volokh, Jonathan Adler, who has posted on the reversals before, says:
Prosecutors within the Sixth Circuit are well aware that some of the Circuit’s judges are out-of-step with existing Supreme Court precedent on habeas. Now that the Supreme Court appears to be aware of this as well, I would expect state AGs to become increasingly aggressive at seeking review of decisions granting habeas petitions.
It was always easy to get "out-of-step with existing Supreme Court precedent on habeas" given the complexity of the issues involved. Congress made the problem worse with the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), shackling habeas petitions with incoherent non-sequiturs masquerading as legal standards. As the Supreme Court described the standard in Renico v. Lett, one of those reversals:
It is important at the outset to define the question before us. That question is not whether the trial judge should have declared a mistrial. It is not even whether it was an abuse of discretion for her to have done so—the applicable standard on direct review. The question under AEDPA is instead whether the determination of the Michigan Supreme Court that there was no abuse of discretion was “an unreasonable application of . . . clearly established Federal law.” §2254(d)(1).We have explained that “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U. S. 362, 410 (2000). Indeed, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id., at 411. Rather, that application must be “objectively unreasonable.” Id., at 409. This distinction creates “a substantially higher threshold” for obtaining relief than de novo review. Schriro v. Landrigan, 550 U. S. 465, 473 (2007). AEDPA thus imposes a “highly deferential standard for evaluating state-court rulings,” Lindh v. Murphy, 521 U. S. 320, 333, n. 7 (1997), and “demands that state-court decisions be given the benefit of the doubt,” Woodford v. Visciotti, 537 U. S. 19, 24 (2002) (per curiam).[Fn 1]
Footnote 1: The dissent correctly points out that AEDPA itself “never uses the term ‘deference.’ ” Post, at 19 (opinion of STEVENS, J.). But our cases have done so over and over again to describe the effect of the threshold restrictions in 28 U. S. C. §2254(d) on granting federal habeas relief to state prisoners.
Got that? Although AEDPA never once uses the term "deference," "deference" is to be given, and a state court criminal conviction will be reversed only where it involved "an unreasonable application of . . . clearly established Federal law." Federal law includes, of course, constitutional law.
You’d think that a person shouldn’t be in jail due to, say, an "incorrect application of clearly established constitutional law" or "an unreasonable application of established constitutional law," but neither would be good enough. It needs to be an unreasonable application of clearly established constitutional law.
Put aside, for the moment, the absence of any real difference between "established" and "clearly established" rights. (A fair share of lawyers and judges never use the word "clearly" since they consider it little more than verbiage, much like how a fair share of authors never use the word "very" since they consider it meaningless and non-descriptive.)
At what point does an "incorrect" legal ruling become an "objectively unreasonable" one?
Consider Armando Galarraga’s foiled perfect game last week, lost through an erroneous call by umpire Jim Joyce. As Joyce described it:
I thought he beat the throw. I was convinced he beat the throw, until I saw the replay.
So Joyce’s call was merely incorrect.
Or was it unreasonable? The New York Times’ sports reporter described it,
Joyce’s decision is easily the most egregious blown call in baseball over the last 25 years.
On the "incorrect" side, Joyce had a reason for his call; on the "objectively unreasonable" side, it was the "the most egregious blown call" in a generation.
There’s obviously room for debate, and we’re only talking about a simple safe-or-out call in baseball, where everybody agrees on the rules.
The same can’t be said for law, where lawyers and judges often disagree on what the rules even are, much less how those disputed rules apply to a given situation.
Throw in decades of vague, sometimes contradictory Supreme Court precedent on the rights afforded to criminal defendants and it’s not too hard to image the Sixth Circuit getting "out-of-step with existing Supreme Court precedent on habeas." There’s precious few "steps" to follow.
Unlike the Sixth Circuit — which has to hear every appeal filed with it — the Supreme Court gets to cherry-pick the vast majority of the cases on its docket, and so could spend all of next year doing nothing more than cherry-picking habeas cases in which it could reverse the Sixth Circuit. It could do that for any circuit, and for any legal issue. It could spend a whole decade doing nothing but affirming appeals of cases initially filed in the United States District Court for the District of Guam.
This year, it chose a handful of cases from the Sixth Circuit to reverse; given the sheer volume of habeas petitions out there, and the diversity of holdings in those cases, the Supreme Court could have chosen cases from any of the circuits to make its point.
Seven reversals is thus no indication of the Sixth Circuit’s reasoning or fidelity to precedent; it’s little more than the Supreme Court holding up a candle in the middle of the dense fog they and Congress created.