Why are circuit splits newsworthy? The short answer is, because they matter. They matter for a variety of reasons to a variety of different people. I came up with the following three reasons:
(1) Cases involving circuit splits are generally more “certworthy” in the eyes of the Supreme Court than cases that do not involve circuit splits.
(2) Circuit splits often provide excellent content for legal scholarship.
(3) Circuit splits create uncertainty about the law, which courts generally try to avoid.
Today’s post will examine the first and perhaps most obvious reason why circuit splits play an important role in our legal system. According to WhiteHouse.gov, on average, the Supreme Court receives approximately 7,500 requests for certiorari each year, but typically grants cert in fewer than 150 of them. With all other things being equal, that means that each petition filed with the High Court has only a 2% chance of being selected for review.
But all cert requests are not equal in the eyes of the Court when it comes to “certworthiness.” Rule 10 of the Rules of the Supreme Court of the United States explicitly identifies the opportunity to resolve a circuit split as among the limited number of compelling reasons for granting certiorari in a particular case.
In his book, Deciding to Decide: Agenda Setting in the United States Supreme Court, Professor H. W. Perry states that “all justices are interested in circuit splits and think they are one of the most important things to establish certworthiness.” In addition to the fact that Rule 10 lists conflicts of law as one of the limited justifications for granting cert, Professor Perry explains that circuit splits often “indicate that an issue is of sufficient importance [in] that it has arisen in different places, and the disposition is not obvious.” In his book, Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers, Professor Eugene Volokh similarly writes, “[a circuit] split shows that there’s an important problem with no obviously right answer. . . . [It] is also a signal to the Justices that it might be time for the Court to resolve the issue.”
In short, the existence of a circuit split in a petition pending before the Court is often the deciding factor that separates the 2% from the remaining 98% of petitions that never make it out of the cert pool. Stay tuned for Part II's discussion of "why circuit splits matter," where I will explain why circuit splits often make for great writing topics.