Is the Fourth Circuit the New Ninth?

There was a time when the U.S. Court of Appeals for the Ninth Circuit was notorious for issuing decisions at odds with existing Supreme Court precedent, and getting repeatedly overturned as a result. The Ninth Circuit was considered the most liberal circuit in the country at the time, and had a few judges who consciously sought to evade restrictive precedent.

Early in the Roberts Court, the U.S. Court of Appeals for the Sixth Circuit developed something of a reputation as the “new Ninth,” particularly with regard to habeas cases. In a string of cases, the Sixth Circuit was reversed, often summarily, for granting habeas petitions too readily.

Both the Ninth and Sixth Circuits are more conservative than they used to be, and are more aligned with the Supreme Court. Today the court that may be most at odds with the Supreme Court might be the U.S. Court of Appeals for the Fourth Circuit–coincidentally, my new home circuit.  (The other contender would be the U.S. Court of Appeals for the First Circuit, which has only one judge appointed by a Republican president, who was just recently confirmed.)

Today the Supreme Court summarily reversed the Fourth Circuit in Clark v. Sweeney, a habeas case. In a unanimous per curiam opinion, the Court concluded that the Fourth Circuit erred in granting a habeas petition, and that its error was so egregious that it justified summary reversal. As the Court summarized the case:

A Maryland jury found Jeremiah Sweeney guilty of second-degree murder and several other crimes. Sweeney’s convictions were affirmed on appeal, and his bid for postconviction relief in state court was unsuccessful. Sweeney sought habeas relief in Federal District Court, and that court, too, denied relief. But the Fourth Circuit reversed and ordered a new trial, relying on a claim that Sweeney never asserted. Because the Court of Appeals departed dramatically from the principle of party presentation, we reverse.

Is this decision a sign of things to come? While I do not expect there to be a tremendous number of habeas cases going from the Fourth Circuit to One First Street, I would not be surprised if the Fourth Circuit amasses a high reversal rate over the next several terms. Last term, the Fourth went 0 for 8, and it’s starting off in the hole for OT 2025.

Also today, the Court summarily reversed a decision from the Mississippi Supreme Court. As with Clark, there was no recorded dissent.

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