[Jonathan H. Adler] Justice Thomas Is Not Happy with the Sixth Circuit (Again)

It may have been easy to overlook with all that's going on this week, but on Monday Justice Thomas (joined by Justice Alito) dissented from the denial of certiorari in Davis v. Smith, a case from the U.S. Court of Appeals for the Sixth Circuit in which a divided panel granted a petition for a writ of habeas corpus in an unpublished opinion.

As I have noted many times before, the Sixth Circuit has had something of a tradition of being more generous in granting habeas petitions than the Supreme Court would like. This seems to happen less than it used to, largely due a change in the court's composition, but still happens occasionally when there is an unrepresentative panel, and that appears to have been the case here.

Justice Thomas, for his part, thinks the Sixth Circuit should corral outlier habeas decisions through rehearing en banc. Short of that, he would like the Supreme Court to act. His dissent begins:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) sharply limits the power of federal habeas courts to review state criminal convictions. The statute permits relief only when there is "no possibility fair-minded jurists could disagree that the state court's decision conflicts with this Court's precedents." Harrington v. Richter, 562 U. S. 86, 102 (2011). Unfortunately, some Sixth Circuit judges have "acquired a taste for disregarding AEDPA" and our cases on how to apply it. Rapelje v. Blackston, 577 U. S. 1019, 1021 (2015) (Scalia, J., dissenting from denial of certiorari). The decision below is the latest example of this practice. Because I would not overlook the Sixth Circuit's blatant and repeated disrespect for the rule of law, I respectfully dissent.

After detailing the facts of the case and explaining why he believes Judge Thapar's dissent was correct, Justice Thomas concludes:

The decision below is the latest in a long line of Sixth Circuit AEDPA errors. This Court has reversed the Sixth Circuit at least two dozen times for misapplying AEDPA. See Shoop v. Twyford, 596 U. S. 811 (2022); Brown v. Davenport, 596 U. S. 118 (2022); Cassano v. Shoop, 10 F. 4th 695, 696–697 (CA6 2021) (Griffin, J., dissenting from denial of rehearing en banc) (collecting 22 earlier cases in which this Court reversed the Sixth Circuit "for not applying the deference to state-court decisions mandated by AEDPA"). And, these reversals only scratch the surface of the Sixth Circuit's defiance. See, e.g., Shoop v. Cunningham, 598 U. S. ___ (2022) (THOMAS, J., dissenting from denial of certiorari); Shoop v. Cassano, 596 U. S. ___ (2022) (THOMAS, J., dissenting from denial of certiorari); Blackston, 577 U. S. 1019 (opinion of Scalia, J.). "That court's record of 'plain and repetitive' AEDPA error is an insult to Congress and a disservice to the people of Michigan, Ohio, Kentucky, and Tennessee." Cunningham, 598 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 13) (citation omitted). The Sixth Circuit can and must do more to correct its own errors. See ibid.

Some "reluctance in deploying en banc review is understandable," but "only to a point." Id., at ___ (slip op., at 14). "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." Ibid. When wayward panels refuse to apply AEDPA, hopefully, the Sixth Circuit will correct its errors by rehearing the case en banc. See 28 U. S. C. §46(c); Fed. Rule App. Proc. 40(c).

This Court also has a job to do. While "primary responsibility for the Sixth Circuit's errors rests with the Sixth Circuit," we too must "correct classic AEDPA abuses, especially when a lower court brazenly commits errors for which we have repeatedly reversed it." Cunningham, 598 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 13). I would have summarily reversed the judgment below to ensure that federal courts do not exceed their very limited role in collateral review of state criminal convictions. I respectfully dissent from the denial of certiorari.

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