One of if not the most well-known sentences from a Supreme Court opinion comes in the form of John Marshall’s line in Marbury v. Madison, “It is emphatically the duty of the Judicial Department to say what the law is.” This short sentence signified a power grab whereby the Supreme Court took on judicial review and consequently the ability to declare statutes unconstitutional. An extended understanding though of “say what the law is” speaks to the larger sphere of the Court’s influence.
The Supreme Court is quite a unique institution even within the federal judiciary. The justices are not bound by precedent and can even overturn their previous decisions. No one can overturn their decisions expect perhaps for Congress and even then the Court may further push back against federal legislation (for example with Employment Division v. Smith followed by Congress passing the federal Religious Freedom Restoration Act and then the Court’s decision in City of Boerne v. Flores overturning RFRA as it applied to the states).
The Court’s power is stark contrast to that of other federal courts in the United States which are bound by stare decisis which starts with the Supreme Court. This hierarchy of the judiciary means that the Supreme Court does not need to cite prior case law to validate its decisions although there are other obvious reasons for citations beyond those born out of necessity.
If Supreme Court citations to prior Supreme Court precedent help maintain the Court’s legitimacy, there is much less of an explanation for citation to other materials. Justices may cite to law review articles or amicus briefs for novel theories and policy implications, especially when these theories accord with their already established views on a matter. Such situations, however, do not explain why justices cite lower court opinions outside of the particular decisions from below in a Supreme Court case itself. Put another way, precedent can’t explain such a practice and nor can a focus on legitimacy.
Lower Court Citations
Lower court decisions may inform the Court in a similar manner to law review articles as Justice Scalia does in this example from Brown v. Entertainment Merchants (2011):
“Judge Posner has observed, all literature is interactive. “[T]he better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.” American Amusement Machine Assn. v. Kendrick, 244 F.3d 572, 577 (C.A.7 2001) (striking down a similar restriction on violent video games).”
In many other instances, references to lower court decisions present examples relevant to a given case, as Justice Barrett’s dissent in Biden v. Texas provides,
“It reserves the question whether §1252(f )(1) bars declaratory relief, an issue on which there are conflicting views. Compare Alli v. Decker, 650 F. 3d 1007, 1013 (CA3 2011) (it does not bar declaratory relief), with id., at 1019–1021 (Fuentes, J., dissenting) (it does), with Hamama v. Adducci, 912 F. 3d 869, 880, n. 8 (CA6 2018) (it depends)”
Lower courts may implement Supreme Court policies in a way that the Court then wants to expand upon when later dealing with a similar issue. Justice Thomas’ decision in NY State Rifle and Pistol Assn. v. Bruen presents this type of use:
“At the first step, the government may justify its regulation by ‘establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood.’ E.g., Kanter v. Barr, 919 F. 3d 437, 441 (CA7 2019) (internal quotation marks omitted). But see United States v. Boyd, 999 F. 3d 171, 185 (CA3 2021) (requiring claimant to show “‘a burden on conduct falling within the scope of the Second Amendment’s guarantee’).”
Justice Thomas’ decision presents another important type of use as well, the type where the Court heeds practices from the lower courts not because it is bound by them, but because the justices find the lower court’s use as informative and persuasive such as in this instance also from Bruen,
“To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson, 9 F. 4th 217, 226 (CA3 2021).”
With this multiplicity of ways that the Supreme Court references lower court opinions we can proceed to look at who and what the justices chose to highlight from the past term.
Slicing the data four ways
The justices cited unique case/opinion dyads with lower federal court opinions approximately 275 last term. This counts each lower court decision mentioned in a Supreme Court decision (all separate opinions included) once so that it does not count how many times a lower court decision was mentioned in a Supreme Court decision beyond the first time.
Looking at the number of unique lower court case citations in each of the Court’s decisions from OT 2022 yields the following after removing cases with zero or one lower court citation:
The 35 cites in Coinbase are more than double the number of cites in Santos-Zacaria (16) which has the second highest number in the set. The citations in Coinbase, a case decided by the 9th Circuit below, show how the justices aren’t only looking at lower court citations from the same circuit below as the circuit decision in the case. While there were seven citations to 9th Circuit decisions in Coinbase there were 28 citations to decisions out of other circuits. Also, if anything there was a negative correlation between the most anticipated decisions for the term, like those in the affirmative action cases, 303 Creative, or in Milligan and a large number of citations to decisions from the circuit courts.
There was also little apparent relationship between the frequency in which the Court took cases from courts below and the frequency of citations to the various circuits.
Even though the Court heard almost 27% of its arguments reviewing 9th Circuit decisions last term, only approximately 13% of the citations or 36 to lower court decisions were to those coming from the 9th Circuit. The Court cited an equal number of decisions from the 2nd Circuit (36 or about 13%) while the Court’s caseload last term was made up of 11.5% from the 2nd Circuit. Similarly, the 26 citations to 7th Circuit decisions far outpace the less than 4% of the Court’s caseload last term from the same circuit.
The time period of the lower court decisions is worth examining as well. More recent lower court decisions may be more meaningful to the justices because they deal with issues at least closer in temporal proximity to the issues in the Supreme Court decisions. On the other hand, older opinions may showcase the standing power and importance of lower court decisions to the extent that they are still relevant. Here is a graph of the cited lower court decisions by year the decisions were handed down.
There was clearly a strong relationship between the Supreme Court decisions last term and more recent lower court decisions although the top number of decisions from a year was the same (13) for decisions from 2001, 2019, and 2021. The oldest cite was to the 1946 2nd Circuit decision in Moss v. Atlantic Coast Line. There were also seven citations to decisions from the current calendar year.
If the justices essentially cite lower court decisions that support their premises in their own opinions solely based on substance of the decision, then one might assume these Supreme Court citations would be agnostic to the lower court judges. The fact that many lower court judges had multiple citations in this set of 275 observations though highlights the importance of lower court opinion author as well. Below are judges who had at least three of their decisions cited by the justices this past term.
Judges Easterbrook and Sutton are two of the more prolific judges on their respective circuits and their oversized presence in Supreme Court opinions from this past term is readily apparent. Their tenures on their circuits also speak to their ability to provide opinions on a wide range of issues across lengthy timelines. While both are Republican nominees (Sutton from George W. Bush and Easterbrook from Reagan), neither are the ultra-conservative as one might expect for a lower court judge cited by a distinctly conservative Supreme Court.
Judge Friendly’s large presence sends a message about the staying power of a top appeals court judge. Even though Judge Friendly retired from the 2nd Circuit in 1986, he has the third most cites of any lower court judge cited by the Court this past term and the five Supreme Court opinions citing to his decisions were well above those for any of the other judges in this set aside from the two judges cited more frequently.
The justices also cited opinions from two of their members, Justices Gorsuch (twice) and Kavanaugh (once), from when they previously sat on a federal court of appeal.
Ultimately, this analysis provides support for the notion that the Supreme Court utilizes lower court citations to support its positions even though they are non-binding and not even as persuasive as previous Supreme Court decisions. This citation practice is pervasive as the justices cited lower court decisions outside of those in the reviewed case in almost all cases decided last term. It also shows that the justices look to specific highly respected lower court judges for support, which suggests that there is something more in the process than random citations to substantively supportive lower court decisions.
Empirical SCOTUS 