Anticipating the Supreme Court
The evidence from Chapters 4 and 5 indicates that, when facing unsettled legal questions, circuit judges pay serious attention to and are often influenced by the decisions of other circuit judges. That being so, it might seem obvious that Supreme Court decisions would play a major role in their thinking. Circuit judges are expected to respect Supreme Court precedent, after all, and the Court, unlike their peers, has the power to reverse their decisions. Furthermore, as discussed in Chapter 1, researchers typically have found that higher court decisions have a substantial impact on the behavior of lower court judges. And while I noted in Chapter 1 that, strictly speaking, we cannot conclude that lower courts' respect for higher court precedents holds when they consider unsettled issues, there is not much reason to doubt that it does.
In the end, though, this line of reasoning yields little fruit, for the question I wish to answer is not whether circuit judges think carefully about Supreme Court precedents when deciding cases but whether they try to decide cases as they think the current Supreme Court would in their place. The distinction is important for two reasons. First, the Supreme Court's preferences may conflict with its precedents. Because nothing compels the Court to obey the logic of the precedents, the decision that it would be predicted to make may differ from the decision implied by the precedents. More important, by definition, Supreme Court precedents will rarely offer clear guidance to judges debating new legal rules. When they do not, circuit judges might attempt to anticipate the Supreme