The Courts Below

Introduction Law students learn most constitutional law from the top down. They learn the Supreme Court's landmark cases and the opinions of the majority and dissenters. But the Supreme Court considers only a small percentage of the cases brought before the federal court system. The vast majority are decided by district judges and courts of appeals, which rarely get the same kind of attention.

This raises an important question: How much leeway should lower federal courts have when a question of federal constitutional law has not been answered by the Supreme Court?

A Hierarchy of Courts

Federal courts are organized as a hierarchy. District courts generally hear cases and make initial rulings. Courts of appeals review those rulings. And the Supreme Court sits at the top, reviewing a limited number of disputes that raise highly important or unsettled questions.¹

This hierarchy establishes the general rule of precedent. Courts below the Supreme Court are bound by its decisions. Courts of appeals are bound by their own circuit's precedent unless it has been explicitly overturned by the Supreme Court or the court sits en banc. District courts must follow the precedent of their circuit.²

But what if there is no controlling precedent? That is where lower courts can act as more than followers. They become constitutional laboratories.

Filling the Gaps

The Constitution does not answer every relevant question in modern society. The Supreme Court may have never considered a given technology, statute, or practice.

A district judge still has to rule on a case. That judge must therefore interpret the existing precedent, constitutional text, history, and analogous decisions from other courts. A court of appeals may then accept that decision or reject it and adopt a different theory. The circuit courts may arrive at different answers.

A circuit split develops. That split does not necessarily represent a problem. It can serve as a basis for testing different theories in the hopes of finding one that is most consistent with the Constitution.

The lower courts then become contributors to constitutional doctrine, even if the Supreme Court has the final say on federal constitutional law questions.

The Cost of a Split

However, circuit splits can have a cost. If one federal appeals court has held that a given policy is constitutional while another has ruled it was unconstitutional, the law a person must follow may depend, in part, on where that person is.

This can be especially impactful to cases involving national businesses and federal agencies. A company operating in multiple jurisdictions might be following two different sets of rules depending on where it is. A federal agency may be required to apply a policy in one place while it is forbidden from applying the policy in another.

The federal judicial system therefore has a built in tension. Courts must have enough independence to be able to wrestle with difficult questions, but the federal law should ultimately be consistent enough to be predictable.

The Supreme Court's Limited Capacity

One reason why this works is simple math. The Supreme Court hears thousands of petitions for review every year, but it agrees to hear only a fraction of them.³ Most legal questions will therefore never be answered by the Supreme Court. They must be answered by the lower courts.

Thus, the American federal judiciary is more like a nexus than a pyramid. The Supreme Court provides a controlling framework; the lower courts fill in the rest.

When Lower Courts Disagree With the Supreme Court

The situation becomes more complicated when a lower court believes that existing precedent is outdated. The doctrine of vertical stare decisis prevents that lower court from just ignoring the Supreme Court's decision because no one thinks it is right.²

If every district judge could ignore Supreme Court decisions, federal precedent would tend to be incredibly unstable. Constitutional doctrines could mean one thing in one courtroom and something entirely different in another courtroom.

The Supreme Court would then have only theoretical authority over the lower courts. The lower courts must follow controlling precedent even when they believe it should be revisited.

Their disagreements with controlling precedent can be expressed through careful interpretation, distinguishing precedent, or asking the Supreme Court to reconsider the question.

The Emergency Docket

The relationship becomes more complicated with the Supreme Court's expanded use of emergency orders.

An emergency application asks the Court to pause a lower court decision before that court has resolved the underlying litigation.⁴ The Court may respond to such an application before receiving the full factual record or the full appellate briefs that might be expected in a merits decision. This can create an extremely expedited hierarchy.

A district judge issued an injunction. An appellate court reviewed it. Then the Supreme Court intervened. The underlying constitutional question may still be undecided, but the practical consequences of the lower court's order may have changed.

Emergency litigation therefore gives the Supreme Court significant influence over disputes that have yet to reach a final judgment. It also makes lower court decisions more important, because a temporary district court ruling can lead to a rapid sequence of appellate review steps.

Lower Courts as Constitutional Laboratories

There is good reason to allow the lower courts room for experimentation. The Constitution provides broad principles, but it is not a detailed instruction manual.

The lower courts can look at evidence, analyze competing arguments, and test the limits of existing doctrines. That can help the Supreme Court.

A circuit split can show precisely how the law is unclear. Those courts can develop competing theories, and the Supreme Court can choose between them rather than inventing one. Legal disagreement can sometimes be productive, but it eventually must produce a rule. Otherwise, constitutional rights will become geographically inconsistent.

The Problem of Unequal Precedent There is also another complication: not every decision carries the same weight. A Supreme Court opinion binds all the other federal courts. A circuit opinion binds only the courts within that circuit. And a district court opinion binds only the parties in the case. There should not always be a single, uniform rule for every person with a similar legal claim, just because they are in the same jurisdiction.

This is not necessarily unconstitutional, however. Federalism and the structure of the federal judiciary deliberately permit regional appellate courts. But it does mean that the path a case takes through the judicial system can be important to its outcome.

Some legal questions get to the Supreme Court quickly, while others get mired in splits among the circuits for years.

Why It Matters

The Courts Below matters because the Supreme Court is not the only player in the federal judiciary. Most constitutional disputes never make it to Washington. They are determined by local judges, judges sitting in panels, and the lawyers' ability to cite supporting court decisions.

That makes those lower courts important players. They need space to interpret ambiguous precedent and answer new questions.

But that independence comes at a limit. The lower courts cannot disregard Supreme Court precedent simply because they disagree with it. And the country cannot function with radically different interpretations of the same federal law. The system depends on a balance between experimentation below and consistency above.

Conclusion

The Supreme Court has the final word on issues within its jurisdiction. But it does not always write the law.

Most of the law Americans use every day is interpreted in district courts and courts of appeals. Those courts grapple with the meaning of Supreme Court precedents, answer questions for the first time, develop competing approaches, and even force the Supreme Court to intervene to resolve disagreement.

The result is a judiciary of both hierarchy and collaboration. The Supreme Court sets bounds. The courts below fill them in. The American constitution law is not made only in the highest levels of the legal system. It is built up from the ground up, too.

1. 28 U.S.C. §§ 41, 1254.

2. See Cooper v. Aaron, 358 U.S. 1, 18 (1958); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).

3. U.S. Supreme Court, 2025 Term Court Statistics, reporting the Court's annual petition and merits caseload.

4. See Stephen I. Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Make Law, discussing the Court's emergency-docket practice.