That’s according to Wayne Logan’s new article, Constitutional Cacophony: Federal Circuit Splits and the Fourth Amendment, and I know of several more just off the top of my head. Wayne argues in his article that circuit splits are harmful because the law needs to be uniform. He therefore proposes ways that the Supreme Court can be forced to hear more cases where a split exists. In particular, Wayne joins the group of scholars that have argued in favor of appellate court certification of cases to the Supreme Court.
I’m not entirely convinced there is a problem, though. In my view, you need to distinguish between the number of splits and their significance. Take the case of the Fourth Amendment. Search and seizure law is notoriously fact-specific: There are thousands of factual variations found in the cases applying Fourth Amendment principles. The exclusionary rule generates a very high number of cases, and resolving those cases leads courts to settle a great deal of law that covers most of those factual variations. In the course of settling that law, some circuit splits emerge. But the mere number of splits doesn’t tell you very much. Thirty-six circuit splits on major recurring issues would be really bad. But a legal system that generates thousands of decisions that resolve most of the law to a very high degree of certainty — and then creates 36 splits on very minor issues along the way — is a system that is actually quite uniform. It’s the significance of the splits that matter, not the number.