Supreme Court Monitoring of the United States Courts of Appeals En Banc

Abstract

The modern Supreme Court agrees to hear only a handful of cases each term. The Rehnquist Court has granted certiorari to less than four percent of petitions, accounting for less than one percent of all cases decided by courts of appeals. Some Court observers have hypothesized that the Court is more likely to review cases decided by courts of appeals en banc. They argue that, because legal issues heard en banc pose closer and more salient questions, these cases are more likely to be reviewed by the Supreme Court. The mere fact of en banc consideration is notable because all circuits combined sit en banc in only 80 or 90 cases a year. But other Court observers have proffered that the Supreme Court will be less likely to review a decision in which all judges of a circuit have participated because the legal issues have been more fully argued and exhaustively considered. This article considers systematically whether the Supreme Court is more likely to review an en banc court of appeals decision than a panel decision. First, we consider Supreme Court review of en banc cases during the Rehnquist Court. Then, in a multivariate empirical analysis of a three-circuit subset of those cases, we control for other variables found to influence the Court's certiorari decision, such as Solicitor General or amicus curiae support for the certiorari petition, a dissent from the court of appeal's opinion, an outcome contrary to the Court's ideological composition, and an intercircuit conflict. The discussion is situated in a larger context of how legal scholars and political scientists have addressed the Rehnquist Court's shrunken caseload from both empirical and policy perspectives.