Federal Circuit Case Selection at the Supreme Court: An Empirical Analysis
Citation: 102 Geo L.J. 271 (2013)
What happens to Supreme Court case selection when the Court is deprived of its most potent case-selection tool, the circuit split? The Supreme Court has identified two factors that guide its choice of which cases to hear: a split between the highest state courts or the federal courts of appeals on a matter of federal law, or an important federal law question necessitating Supreme Court review. Because Congress has vested exclusive jurisdiction over federal claims, patents, and veterans’ appeals in the U.S. Court of Appeals for the Federal Circuit, it is virtually impossible for federal appellate courts to split on interpretation of those federal statutes. Absent circuit splits, and given the vague nature of whether a given issue poses “an important question of federal law,” how does the Supreme Court decide which Federal Circuit cases merit review? Part I of this Note describes the general criteria the Supreme Court uses in deciding which cases it should hear and the unique concerns presented by Federal Circuit cases. Part II describes the Court’s historical approach to reviewing the Federal Circuit and changes in recent years. Finally, Part III describes three factors that appear particularly important to the Court when considering which cases merit review, and which should provide those interested in the Federal Circuit’s or Supreme Court’s docket with helpful guidelines to determine which Federal Circuit cases will draw the Supreme Court’s interest.