Back in December I wrote a series of posts about the importat role that circuit splits play in shaping the Supreme Court's agenda. (See here, here, and here.) Today I thought that I would revisit the topic by examining four reasons why the existence of a conflict of law between the circuits significantly enhances the certworthiness of an issue pending before the Supreme Court. So without further ado, here are four reasons why the Supreme Court places a special emphasis on resolving circuit splits:
1. The Constitution favors uniformity.
As the "one supreme Court," the nine Justices are instructed by the Constitution to ensure that federal laws are uniformly applied as "the supreme Law of the Land."
2. The Court's commitment to Congress to ensure the uniformity of federal law.
In their article, "The Philosophy of Certiorari," law professors Richard and Margaret Cordray explain that "some view the Judges' Bill of 1925, which gave the Justices the authority to exercise control over most of their plenary docket, as designed to help achieve uniformity; indeed, some believe that the legislation was based on an explicit commitment that the Justices made to Congress to protect the uniformity of federal law in return for Congress' ceding the Court so much control over case selection."
3. The Supreme Court's desire to discourage forum shopping.
From a pragmatic standpoint, circuit splits incentivize forum shopping; that is, situations where litigants or potential litigants attempt "to have [their] case heard in the forum where it has the greatest chance of success." Lynn M. LoPucki & William C. Whitford, Venue Choice and Forum Shopping in the Bankruptcy Reorganization of Large, Publicly Held Companies, 1991 WIS. L. REV. 11, 14 (1991). To illustrate this point, imagine that the Eighth Circuit just issued a decision in which its construction of a provision in the Tax Code closes a lucrative tax loophole formerly available to corporations. Now assume that corporations located in the Fifth Circuit are still able to take advantage of this loophole based on the Fifth Circuit's corporate-friendly reading of the provision at issue. This scenario would produce a strong incentive for a corporation headquartered in, let's say, Bentonville, Arkansas, to close its doors and move to a city within the Fifth Circuit to take advantage of the corporate-friendly interpretation of the Tax Code.
4. The Supreme Court's desire to ensure fairness.
On the other hand, if the corporation in our hypothetical above decides to keep its headquarters and operations hub in Bentonville Arkansas, the circuit conflict would place the company at a serious competitive disadvantage simply because of its geographic location. Meanwhile, by virtue of the Fifth Circuit's corporate-friendly interpretation of the tax law at issue, competitors would continue to enjoy the tax savings created by our hypothetical loophole. To avoid this problem in analogous cases, the Supreme Court may feel obligated to step in and direct the lower courts to apply the law in a uniform manner, restoring fairness and legitimacy to the law.
↬ Margaret Meriwether Cordray & Richard Cordray, The Philosophy of Certiorari: Jurisprudential Considerations in Supreme Court Case Selection: 82 Wash. U. L. Q. 389, 436-37 (2004).
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