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Our last post explained how any of the nearly 400,000 cases filed in Federal Court each year may work its way up to the U.S. Supreme Court.  But our readers will also remember that the Court hears only about 80 cases.  Even without counting petitions filed by prisoners, only a few percent of the cases submitted to the Supreme are actually reviewed.

U.S. Supreme Court rules state that the Court will consider cases of great public importance, or cases where decisions from the Courts of Appeals conflict.  The vast majority of those the Supreme Court decides are in the latter category.

One may recall that there are 11 regional Courts of Appeals in the country.  Each decision they make is binding on its area of responsibility, called its Circuit.  A decision by the 11th Circuit Court of Appeals, for instance, will constitute the mandatory interpretation of federal law in Florida, Georgia, and Alabama. But it will not bind federal courts anywhere else.

This is where conflicts come from.  One Court of Appeals may interpret a law one way, but another will differ.  This is colloquially called a “Circuit Split.”  For example, the 7th Circuit (responsible for Wisconsin, Illinois and Indiana) had held that “inherited IRAs” (i.e. funds received by a beneficiary) were not actually retirement funds saved by the current owner and were therefore part of the bankruptcy estate and subject to satisfying creditors; the 5th Circuit (covering Texas, Louisiana and Mississippi) had reached the opposite conclusion.  The Supreme Court stepped in so the entire country would have a uniform interpretation of the law – at least on that question.  (Inherited IRAs may be reached by creditors in bankruptcy, by the way.)

On the opposite end, this explains, though many pundits claimed surprise, why the Supreme Court did not take the so-called “gay marriage cases.”  There was no conflict to resolve because every Court of Appeals had ruled the same way.

And there we catch a glimpse of why the Supreme Court decides so few cases.  First, it takes a lawsuit.  Then the lawsuit must not settle and well over 90% of civil suits do.  Next it takes litigants with either the resources to litigate in front of three separate courts or the help of pro bono representation by a firm with the means and will to undertake a major project without pay.  And then it takes four Justices agreeing that there is a sufficiently profound Circuit Split for the Court to step in.  Yet most lawyers are always ready to take a case all the way up to vindicate a client’s right.


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