Judicial Entrepreneurs on the U.S. Courts of Appeals: A Citation Analysis of Judicial Influence

Abstract

Federal courts of appeals are constrained by the power and preferences of the Supreme Court. The principal-agent model reveals that circuit judges gain power largely by avoiding review. We consider, however, whether circuit judges may adopt a strategy aimed at attracting a justice's attention rather than eluding it. In the present paper, we find that Supreme Court justices regularly cite circuit court opinions, particularly those decided within the last ten years and authored by judges from the same party. The Court's practice of acknowledging lower court rulings emphasizes the power of intermediate appellate courts in a hierarchical, common-law judicial system.