The art of the circuit split: an explainer

In their petitions for review, litigants spell out – in detail – why the Supreme Court should take up their case. These petitions can cover a wide range of topics, but many of them include a lengthy discussion of what is known as a circuit split – that is, a disagreement between the federal courts of appeals – on the legal issue on which they are asking the court to weigh in. Why? Circuit splits are among the top factors that the court considers when determining whether to grant review.

Circuit splits themselves, however, come in a variety of forms. Splits can be messy or clean. Percolating or persistent. Old or new. Indeed, there is sometimes controversy on whether a circuit split even exists in the first place.

Part of grabbing the Supreme Court’s attention is thus deciding what characteristics to play up and when – hence, the art of the circuit split.

Why circuit splits matter

Before we get into those nuances, let’s back up and revisit why circuit splits feature prominently in petitions for review.

The biggest reason the justices (well, their clerks) look out for circuit splits is somewhat obvious: when different circuits have reached separate conclusions, it means a law or legal principle applies differently throughout the country. Resolving a circuit split therefore does more than bring clarity to a single case; it can clear up confusion that persists nationwide.

In some cases, this confusion is primarily a problem for the federal government, which, in its petitions for review, often describes the challenges associated with upholding one interpretation of a law or regulation in one region of the country and a different interpretation elsewhere. Similarly, companies that operate in multiple states regularly bring circuit splits to the court’s attention and explain that the confusion makes it more difficult to do business.

Circuit splits may also be raised in petitions from individuals in the midst of a crisis – for example, fighting a criminal charge, a fine, or job loss. These people may emphasize that their fate has been determined simply by where they are located.

Opportunities to address widespread issues with a single case also matter to the justices because they currently only hear about 60 arguments per term. Circuit splits are perhaps the best way for the justices to ensure the cases they select provide the maximum impact.  

Circuit splits come in many forms

That said, the court is not looking for just any circuit split. Petitioners – that is, the litigants seeking review – need to show not just that there’s a disagreement between the courts of appeals, but also that the time is right for the justices to address it. This is where jargon like “clean” and “persistent” comes in.

To be clean, a circuit split has to be straightforward and clearly established. In other words, courts of appeals need to have drawn on the same Supreme Court precedents and doctrines on the exact same legal question but come to different conclusions. When this happens, the courts themselves often acknowledge the split in their rulings.  

Messy splits, on the other hand, occur when multiple courts of appeals have addressed the same legal question but come at it in different ways, whether because the cases in front of them involved complicated sets of facts or because the question implicated multiple precedents. In other words, the courts of appeals reached different conclusions, but their reasons for doing so (and the facts before them) are fairly easy to distinguish.

As you might have guessed based on the names, the Supreme Court is more interested in clean splits than messy splits, because it may not be possible to resolve messy splits in one go.

But that’s not all. Another element that the justices consider is the status of the split. Is it percolating – that is, actively developing as multiple related cases work their way through the legal system? Or is it persistent, meaning that such cases have been decided and the appellate courts have settled themselves along the battle lines and are unlikely to budge?

The court’s reaction to percolation varies depending on the context. Sometimes, the justices may be eager to jump into the fray and clear up the confusion before it gets any worse. Other times, they appear to prefer to sit back and wait to see if one or more courts of appeals arrives at an answer they like. For example, when the court turned down a case last June on whether AR-15 bans violate the Second Amendment, Justice Brett Kavanaugh wrote that the issue was “currently being considered by several other Courts of Appeals,” which “should assist this Court’s ultimate decisionmaking.”

As for a persistent split, sometimes this may be appealing and other times less so. If such a split has existed for decades without causing chaos, the court may feel no need to disturb the status quo. That was one factor (among many) that likely worked against Ghislaine Maxwell’s effort to get the Supreme Court to review her conviction on the basis that the U.S. attorney’s office which brought sex trafficking charges against her had ignored a relevant non-prosecution agreement. The U.S. Court of Appeals for the 2nd Circuit had noted in its ruling against Maxwell that “circuits have been split on” how to determine the scope of non-prosecution agreements “for decades.” By comparison, a persistent or recurring split that developed more recently may be ripe for the court’s attention.

(Splits can also be old or new, although these descriptors overlap with the labels I’ve already discussed. New splits are often still percolating, while old splits may be persistent.)

Assessing splits

Given all these factors, it is common for respondents – that is, the party that won before the lower court and that typically opposes Supreme Court review – to reject the petitioner’s description of a split or to deny that a circuit split even exists. They may do so in several ways, such as by highlighting key differences between the lower court rulings that have been explored or by exploring the complicating factors present in the current case.

But even if the respondent is unsuccessful on that score, it doesn’t end the court’s inquiry. After determining that there is, indeed, a split and that it could be worth addressing, the court also usually considers whether the case before them is the right vehicle, or opportunity, with which to take on that task. For example, cases won’t make the cut if they are too “factbound” (that is, heavily dependent on the application of the law to the unique facts of the case) or if they raise other problems, such as questions of mootness or standing, that make it questionable whether they could be heard at all. To put it simply, the court is looking for clean cases in addition to clean splits.

This prevents most legal teams from making claims about a circuit split that are easy to disprove. But it certainly won’t stop good advocates from embracing the unique language of splits to paint their petition in the best possible light.