'Such Inferior Courts...': Compliance by Circuits with Jurisprudential Regimes

Abstract

In the language of principal agency, it is important to know whether lower courts are faithful agents to their judicial principal (Benesh and Martinek 2002, 126). But it is also important to know whether that faithfulness stems from an institutional commitment to make good law, or some lucky coincidence of aligned preferences. In other words, we need not only consider whether the lower courts comply with the Supreme Court, because, in most cases, that answer is, resoundingly, yes. What scholars continue to puzzle over is why the lower courts comply. Do they do it out of self-interest; e.g., out of reversal avoidance (born either of ego or of commitment to ideological outcomes)? Or do they do it because they genuinely wish to get it right with respect to the law; e.g., in attempts to make decisions as the Supreme Court would have them do because of an acute awareness that they staff such inferior courts as the Congress may from time to time ordain and establish (U.S. Constitution, Article III, Section 1). We advance an innovative test of the degree to which the U.S. Supreme Court influences decision making in the U.S. Courts of Appeals, and how it does so, that expressly considers the role played by law in judicial decision-making. Considering the U.S. Supreme Court's Establishment Clause jurisprudence, we seek to determine whether the jurisprudential regime adopted by the Court, as denoted by the decision in Lemon v. Kurtzman (403 U.S. 602, 1971), structures decision making in the circuit courts, thereby adapting Kritzer and Richards' concept of jurisprudential regimes for use in measuring and explaining compliance (Kritzer and Richards 2003, 2005; Richards and Kritzer 2002).