This Article demonstrates, empirically rather than merely in theory, how a failure to do so leads to unreliable conclusions concerning the relationship between the Supreme Court and the circuit courts of appeal. Specifically, commentators routinely misapply facially accurate raw data regarding the rate at which the Court reverses circuit court decisions to support unreliable conclusions regarding the comparative degree of accord between the Court and individual circuits. Commentators and the popular press then employ these unreliable conclusions to draw unsupported inferences regarding the reasons for supposed discord between the Court and the circuits, and to urge fundamental institutional reforms ranging from dividing circuits to creating intermediate levels of judicial review.
Part II of this Article provides context for this Study by reviewing the principal ways in which empiricists employ raw data and inquiry-based analysis to study Supreme Court review practices. Part III examines how raw data and inquiry-based analysis apply to the question of Supreme Court/circuit court accord, explains how circuit splits and other factors affect apparent rates of accord, and distinguishes simple Supreme Court case disposition data (“affirm/reverse” rates, which do not account for circuit splits) from more comprehensive “approve/abrogate” rates (which do account for circuit splits). Part IV defines the two datasets this Article uses to compare affirm/reverse rates to approve/abrogate rates, and outlines the methods and parameters of the Study. Part V elaborates the Study’s findings regarding the differences between affirm/reverse rates and approve/abrogate rates, demonstrates that affirm/reverse rates do not reliably reflect the degree to which the Court agrees with the circuit courts of appeal, either in the aggregate, or on a circuit-by-circuit comparative basis, and considers what these data suggest about other variables, such as issue disparity, that may fundamentally impact Supreme Court/circuit court accord. Part VI summarizes these conclusions, makes recommendations regarding the interpretation and application of Supreme Court review data, and identifies areas for further study.
Recommended CitationKaren M. Gebbia, Circuit Splits and Empiricism in the Supreme Court, 36 Pace L. Rev. 477 (2016)
Available at: http://digitalcommons.pace.edu/plr/vol36/iss2/4