We have looked through the last ten years of en banc decisions in the interest of the perennial question of what makes the Sixth Circuit more likely to grant a petition for en banc review. But first a word on how many cases the judges accept . After increasing to six en banc cases per year in prior decades, and occasional years with just one case, the Sixth Circuit has decided a steady stream of 3-4 cases per year. Thirty-eight cases over the last decade. So what kind of cases do they pick from over a thousand en banc petitions each year? It may come as no surprise the  larges group, nearly a third (32%) of the en banc decisions, address unresolved issues in criminal cases—mostly in sentencing, which is an evergreen source of difficult legal questions.

Over a quarter of the decisions (26%) are habeas cases. Many of them are death penalty cases, or other cases involving serious crimes, and they appear to have been taken to ensure the circuit does not push the boundaries the Supreme Court has placed on habeas relief under AEDPA. Readers may remember that the Sixth Circuit had, for a short time, more cases reversed than any other circuit because the Supreme Court kept reversing grants of relief in habeas cases. But the Sixth Circuit has largely (though maybe not entirely) stopped innovating in habeas cases and so has been reversed much less often. The crown for the most-reversed circuit has fallen back to the Ninth, though the Fifth is making a strong case for itself.

The Sixth Circuit also frequently accepts full-court review of constitutional cases against the Government, which comprised 29% of the en banc cases in the last ten years. The circuit has focused its those decisions on the First Amendment (both free speech and the Establishment Clause), the Second Amendment, and abortion. The circuit has also been consistently choosing cases that address current issues of great (and often current political) importance, such as the mask mandate, prayer and government, election law, and abortion restrictions. Perhaps the best advice for getting en banc review in the civil context is to be litigating something a particularly contentious constitutional issue in the culture wars.

What about private civil litigation? Not much luck there. By our count, the Sixth Circuit has only granted review in five such cases in the last ten years, and most of those deal with interesting questions of statutory interpretation like ERISA, the ADA, and Title XI. The circuit appears uninterested in cases just because they involve big-ticket or bet-the-company litigation—requiring parties to focus their en banc petitions on the importance of the issue itself and the existence of circuit conflicts instead. In fact, the only one that qualifies as big-ticket litigation is the Circuit’s most recent en banc decision, Speerly v. General Motors, LLC, 143 F.4th 306 (6th Cir. June 27, 2025) (en banc), which vacated a multi-state class certification of over two-dozen state subclasses. Like the other subjects of en banc cases, the advent of state-specific subclasses is an important development many circuits are wrestling with right now.

In a later post, we’ll talk about other ways the Circuit selects case for en banc review.