3
differently, what do we as political scientists miss when we focus exclusively on the
Supreme Court?
Not only is the literature on judicial independence that is Supreme Court centered,
the majority of the public law research in political science overwhelmingly focuses on
studying the High Court. A search for articles in political science journals in the JSTOR
database with ”Supreme Court” in the title, between the years 1980 and 2004, returned
157 articles.
1
A similar JSTOR search, in the same time period, for articles with “Circuit
Courts”, “Circuit Courts of Appeals”, or “Courts of Appeals” in the title, drew 12 articles.
Even among the small but growing band of political scientists who study the Circuit
Courts of Appeals, the relationship between the Supreme Court and these courts is not
often addressed.
2
In this article, I focus on the relationship between levels of the
judiciary, and I particular the different institutional contexts in which they operate. The
subject becomes all the more important because of the reality of the small number of
cases that the Supreme Court grants certiorari to today make the Circuit Courts of
Appeals the most likely court of last resort for most litigants in the federal judiciary.
Furthermore because of the reality of caseloads, it is the Circuit Courts of Appeals (not
the Supreme Court) that today have primary responsibility for oversight of administrative
agencies. Given the large and exponentially growing volume of cases adjudicated by the
Circuit Courts of Appeals, focusing exclusively on the Supreme Court while ignoring the
activity in the lower courts is to focus on the tip of the proverbial iceberg without
1
This number excludes articles on other country’s Supreme Courts as well as state Supreme
Courts.
2
There are a few scholars who are starting to examine the relationship between the Supreme
Court and Circuit Courts of Appeals by applying principle agent theory to the two courts. These
works include Benesh, 2002, and Songer, 1994. Also, Frymer, 2003 and Melnick, 1994 are
studies that include analysis of the Supreme Court and Circuit Courts of Appeals.
Convention