A host of scholars have argued that decision making in lower courts is at least partially determined by decision making in the U.S. Supreme Court. In other words, Supreme Court jurisprudence in a given area influences the way that the lower courts decide similar cases. This may seem like an unremarkable assertion given the principle of stare decisis and the expectation that lower courts are bound by decisions made by higher courts. Nonetheless, there are intriguing evidentiary omissions with regard to what we know about compliance with Supreme Court precedent. In particular, despite the voluminous expenditures of scholarly time and attention, we do not know how the High Court’s influence on the federal circuit courts compares with its influence on the state courts of last resort. We might well assume that the Supreme Court has far greater impact on the U.S. Courts of Appeals since those courts are more closely constrained to follow Supreme Court precedent by virtue of their position in the federal judicial system. In contrast, state courts of last resort are not direct members of the federal judicial system and are therefore more divorced from Supreme Court influence. Further, while we know that the Supreme Court hears very few cases from the federal courts of appeals, it hears an even smaller percentage of cases most recently decided by the state supreme courts. It seems, therefore, that the motivation to abide by Supreme Court rulings is dramatically reduced in the state courts and, accordingly, that a reasonable expectation is that Supreme Court precedent will fare worse in structuring decision making on state courts in comparison to decisions on the federal circuit courts. Contrary to these expectations, however, Martinek found that state court decisions actually do comport closely with Supreme Court policy in the area of search and seizure. In fact, Martinek found that the state supreme courts decide their cases in greater accord with High Court prescriptions than do the federal circuit courts. Benesh and Martinek’s findings are also suggestive in the area of confession, the area of law we consider in this Article. They found that state high courts are influenced by Supreme Court policy, even after controlling for the influence state elites (who are instrumental in staffing the bench) have on these courts. They characterize this influence as a legal one, rather than one driven by a fear of reversal, because only those facts the Court deemed relevant to the decision whether to admit a given confession were significant, while the ideological predisposition of the Supreme Court, which a lower court looking to avoid reversal would consider, was not. Motivated by these somewhat counterintuitive findings, we suggest an additional comparative analysis of Supreme Court impact on state and lower federal courts. Here, we undertake a systematic comparison of decision making in state supreme courts and the U.S. courts of appeals in the area of criminal confessions. Prior work has demonstrated that the Supreme Court does indeed influence the federal courts of appeals in this area of law.11 We provide additional evidence that all lower courts are constrained and that the influence of the Supreme Court is seen throughout the lower courts, be they state or federal courts, and without regard to the fact that the High Court appears to do little to induce that compliance. Further, an increasing number of decisions emanating from both state and federal lower courts are final. If one type of court—state high court or federal intermediate appellate court—more closely adheres to Supreme Court precedent than another, there are important ramifications for due process. Certainly, it is unremarkable to note that there are regional differences across the country—the federal nature of American government is both a product of and a reflection of this fact. And it is also unremarkable to observe that these differences most likely manifest themselves in the policy making of various branches and levels of government. But the Supreme Court is charged with interpreting the Constitution for the entire nation, and its interpretation of the rights afforded to the accused in terms of representation and self-incrimination, which the Court has confirmed are constitutionally based, must be effectuated in all criminal systems, not just in the one for which it is naturally the apex (i.e., the federal system). If Supreme Court decisions did not matter to the state supreme courts, there would be myriad cases decided in the legal systems of this country every day that may be inconsistent with (or perhaps downright abhorrent to) Supreme Court policy. Because the High Court is the final arbiter of the Constitution, surely we expect some attention to be paid to it by the state courts. Just how much attention, and how that attention compares with the attention paid by the U.S. courts of appeals, is the question of interest in this Article.
Sara C. Benesh and Wendy L. Martinek,
Context and Compliance: A Comparison of State Supreme Courts and the Circuits,
93 Marq. L. Rev. 795
Available at: http://scholarship.law.marquette.edu/mulr/vol93/iss2/16