Loud Voices From Below

The Supreme Court only takes a small fraction of cases petitioned to it every year and there is no perfect formula for ensuring a case makes its way to the Court.  There are, however, several signals that can help a case along the way.  Much of what matters has to do with uniformity in case law. When federal appellate circuits split on understandings of the same legal question, the Court may try to set a federal standard that respects the Constitution (for information on current circuit splits you can read the Forma Legalis Blog or read the Seton Hall Circuit Review (most content here is behind a paywall)).

Strong arguments directed at the Court on certiorari often underscore the importance of the legal question involved and any disparate understanding inherent in lower courts’ decisions on the case issue(s).  Lower courts can and often do signal these issues to the Court as well.  Specific lower court judges have the Court’s ear when it comes to certiorari.  The process through which this communication occurs is through dissents.  Oftentimes the post-hoc sign of a successful lower court dissent that caught the Court’s attention is when the Court overturned the lower court majority’s decision.

Since so many lower court judges dissent every year, it is mathematically unlikely that any dissent in particular will lead to Supreme Court cert grant.  This implies that specific lower court judges may have unique abilities to direct the Court’s attention towards particular cases.

Since 2011, around one-fourth of the Court’s annual docket derived from cases with lower court dissents.


This percentage of cases has been relatively stable across this period.  If a lower court dissent’s sign of success is gauged by the Court overturning the lower court’s decision, then these lower court dissents do, more often than not, lead to successful outcomes.


Scholars note, however, that the Court tends to hear cases that a majority of the justices wish to overturn on the merits (some of the argument for this can be found around page 14 of this article. See the book described in this article for a broader theoretical explanation for this practice.)  If the justices are more likely than not to rule for the petitioner the question then becomes whether lower court dissents lead to a greater overturn rate than other cases.  The next figure begins to fill in an answer to this question.


Over the past few terms the rate of petitioner success for both cases that include lower court dissents and those that do not both hover between 60% and 70%.  There is no obvious petitioner advantage from these statistics that is particularly attributable to lower court dissents.  The real advantage to lower court dissents may well be in specific judges’ dissents leading to disproportionate levels of cert grants.

Specific lower courts are the sources of more Supreme Court cases than others.  The 9th Circuit, the largest federal judicial circuit which also hears the most cases annually tends to have high rates of Supreme Court review.  This is also evident from the Court’s grants of cases with lower court dissents.


This figure is not far off proportionately from the Court’s full docket.  The 9th Circuit has the most cases with dissents that the Court heard followed by cases from state supreme courts and the D.C. Circuit.

Breaking down the lower court level by judges paints a bit of a different picture.  This picture depicts some judges and not others highlighting the importance of dissents from specific judges.  There are many judges that dissented in one case that led to a cert grant since 2011 (and through the Court’s 2016 term).  The focus of the following analysis is judges with two or more dissents in cases that the Court later heard.


The most successful judges according to this metric were Judges Newman and Dyk from the Federal Circuit.  After these two judges, three judges – Judges Callahan from the 9th Circuit, Daugherty from the 6th Circuit, and Smith from the 5th Circuit.

To focus on politics for a moment, the majority of the judges on this list were appointed by Republican Presidents.  The split of judges in the figure is eleven republican appointees to five democrats (six democrats including North Carolina’s Justice Hudson who ran as a democrat).  This may indicate a specific trend although more analysis is necessary.

Once the Court chooses to grant a case its work is not complete.  Similarly a dissenting lower court judge may not be satisfied if the Court upholds the lower court majority’s decision.  The following figure looks at the Court’s decisions on cases that included dissents from the judges in the preceding figure.  It uses a dichotomous measure based on whether the Court vacated and/or reversed the lower court decision or responded in any other fashion (affirming or otherwise).


The judge with the most successful dissenting percentage according to this measure was Judge Callahan. Although Judges Callahan and Newman both had three dissents that led to overturned rulings, Judge Newman also had two dissents where the Court upheld the lower court majority’s decision.  The three other judges who had two successful dissents without any dissents not leading to an overturned lower court decision include Judges Griffin, Hughes, Kozinski, and Sutton.

The lower court dissents that comprise the data for this post are from a wide range of important cases.  They include, for instance, Judge Daugherty’s dissent from the 6th Circuit’s decision in Obergefell v. Hodges and Judge Bea’s dissent in part from the 9th Circuit’s decision in United States v. Arizona.  Such dissents can supply the Court with reasons to hear cases and with principles to follow on the merits.  They can only do so, however, if the justices pay heed to the dissents in the first place.  If some judges’ dissents are given more weight than others, then it makes sense to pay attention when these judges dissent from decisions moving forward as well.

On Twitter: @AdamSFeldman

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