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Not that we’re keeping score

Lawyers  accustomed to a lockstep accord between the 4th U.S. Circuit Court of Appeals and the U.S. Supreme Court may be seeing the tide turn.  In bygone days, disagreements were rare between the conservative high court and the like-minded appellate panel.

But this accord between the courts has been decreasing gradually during the past few terms, according to a tally by On the Record. The justices, in their October Term 2006, disagreed with the 4th Circuit in one of the two appeals they heard; in the October Term 2007, the number was two out of three.

And during this Supreme Court session, October Term 2008, the justices rejected the 4th Circuit’s decision in all five written opinions they issued in appeals from the Richmond-based court. The high court reinstated a firearms conviction (U.S. v. Hayes) overturned an order for arbitration (Vaden v. Discover Bank); reversed a felony drug conviction (Abuelhawa v. U.S.); vacated the denial of an asylum seeker from Cameroon’s motion to stay a federal removal order (Nken v. Holder); and vacated the sentence in a drug conviction (Nelson v. U.S.).

In a sixth case, the justices issued an order vacating the 4th Circuit’s decision upholding the continued detention of a suspected Al-Qaida agent without trial in the United States and dismissing the case as moot. The high court took the step at the request of the Obama administration, which told the justices that the suspect, Ali Al-Marri, will face trial on federal charges of conspiracy and providing support to terrorists.

High-court prognosticators, take heed.

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