Two Roads Diverged: Statutory Interpretation by the Circuit Courts and the Supreme Court in the Same Cases

90 Pages Posted: 23 May 2019

See all articles by James J. Brudney

James J. Brudney

Fordham University School of Law

Lawrence Baum

Ohio State University (OSU) - Department of Political Science

Date Written: May 22, 2019


Scholars and judges have long disagreed on whether courts of appeals construing statutes ought to adapt their use of interpretive resources to Supreme Court approaches. If circuit courts and the Supreme Court approach statutory issues in similar ways, this can perhaps provide a measure of predictability for litigants and the public while conserving judicial resources; it may also enhance perceptions of fairness in the judicial system. Such normative arguments invite—even demand—a fuller understanding of the underlying descriptive reality: whether anything approaching uniformity or consistency actually exists.

This Article aims to provide that understanding. It does so through an in-depth examination of similarities and differences in how the Supreme Court and circuit courts apply key interpretive resources in a universe of identical cases involving statutory interpretation: those on which the Supreme Court reviews what an appeals court has decided. From circuit judges’ standpoint, such cases are more complex than the bulk of their docket; moreover, the judges nearly always are aware when they are creating or contributing to circuit conflicts that are centrally important to the Court’s granting of cert.

Our findings provide a modicum of support for the virtue of predictability. The Supreme Court’s increasing reliance during the Rehnquist and Roberts years on ordinary meaning, language canons, and dictionaries, and its declining interest in legislative history, are trends that the appeals courts followed with a lag of several years, suggesting that circuit courts are being influenced to some degree by Supreme Court changes in emphasis and priority.

But a number of findings lend descriptive support to normative arguments opposing uniformity. Some results support divergent approaches based on differences in institutional perspective: circuit courts prefer simpler interpretive frameworks as more compatible with their heavier workloads. Other findings supporting a pluralist approach in these identical cases suggest that appeals courts are reacting silently but negatively to the doctrinaire pronouncements of certain Supreme Court justices. And a third set of findings underscores both the necessity and the value of deliberative disputation between the two judicial levels.

In the end, it is the divergence in interpretive approaches between the two levels of courts that stands out. Based on our empirical and doctrinal analyses, a substantial degree of divergence seems inevitable even in this special universe of identical cases. Whatever its desirability may be as a normative matter, uniformity between the Supreme Court and the courts of appeals in reliance on interpretive resources is a chimera.

Suggested Citation

Brudney, James Jules and Baum, Lawrence, Two Roads Diverged: Statutory Interpretation by the Circuit Courts and the Supreme Court in the Same Cases (May 22, 2019). Forthcoming, Fordham Law Review; Fordham Law Legal Studies Research Paper . Available at SSRN:

James Jules Brudney (Contact Author)

Fordham University School of Law ( email )

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Lawrence Baum

Ohio State University (OSU) - Department of Political Science

Blankenship Hall-2010
901 Woody Hayes Drive
Columbus, OH OH 43210
United States

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