My colleague Kelly Rader and I are working on the first comprehensive study of inter-circuit splits in the U.S. Courts of Appeals. These cases are widely considered to be, by both political and legal schools of thought, the core cases for Supreme Court review. A circuit split arises when two circuits of the U.S. Courts of Appeals resolve the same legal question differently. This disagreement means federal law is applied differently in different parts of the country, so that similarly situated litigants receive different treatment across jurisdictions. Even setting aside normative questions about legal uniformity, these cases provide an opportunity to study the relationship between the Supreme Court and circuit courts, the formation of the Supreme Court’s docket, significant changes to the path of law nationally, and the role of ideology in shaping this path.
Our original dataset covers, for now, circuit splits that arose between 2005 and 2013. Some of these splits have been resolved by the Supreme Court; others not. Uniquely, our dataset includes every case in every circuit involved in each split. We are the first to gather all cases that implicate a precise legal matter, which allows us to ask new questions, and to provide more accurate answers to existing questions, about the judicial hierarchy in general and circuit splits in particular.
Our initial examination of these data already demonstrates their importance for inferences about Supreme Court behavior. Contrary to conventional claims about how the Court views circuit splits, we find that the justices are more likely to review lop-sided conflicts (those in which many circuits take one side and few take the other) than they are to review so-called deep conflicts (those that evenly divide the circuits). We also find that the Court is no more likely than not to review conflicts that reveal clear ideological divisions across the circuits. These findings are preliminary evidence that common notions of how the Court creates its docket and monitors the lower courts are contestable.
We use these data to write two (initial) papers.
In the first paper, Legal Uniformity in American Courts, we use these data to describe the lifecycle of a circuit split, using the Supreme Court’s decisions about whether and when to resolve conflicts to advance the literature on certiorari. The Supreme Court does not simply decide whether to approach important national issues; it must also decide when to approach them. This requires choosing a case that presents the facts well, biding time for the politically correct climate, and learning enough about the issue through lower court decisions. Because our data include all cases that implicate a given legal question, we can, for the first time, move beyond a theory of which cases are decided to which legal issues are resolved and when. That is, we can model what the Supreme Court actually considers when making its docket.
The second focuses on the role of ideology in the judicial hierarchy. How ideology shapes judicial decision-making is the founding question of judicial politics. A common finding is that the Supreme Court, acting in a monitoring role over the lower courts, is more likely to review decisions made by ideologically distant lower courts. Yet in this literature scholars have been unable to distinguish between the Court’s choice to review a particular decision in a particular case from its choice to resolve a particular legal question. Thus conclusions about the Court’s ideologically-motivated monitoring behavior may be confounded by the types of legal issues that arise in “enemy” lower courts. Our dataset of conflicts allows us to hold constant the legal question across many cases, while “varying” the ideology of the lower court issuing the decision. Further, we can hold fixed the answer to the legal question itself (i.e., the actual doctrine) across cases on the same side of a conflict and see, under these ceteris parabus conditions, whether known results about ideology still hold.