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Certiorari, writ of

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Significance: The Court determines which cases it will hear and thus what legal issues it will review through the issuance of writs of certiorari.


The U.S. Constitution and Congress determine the Supreme Court's jurisdiction to review cases. Article III of the Constitution and various congressional statutes grant the Court two main areas of jurisdiction: original and appellate. To relieve the Court of its rapidly growing caseload burden, Congress established the federal circuit court of appeals with the Judiciary Act of 1891. The act also authorized the Court to review final decisions in certain categories of cases through the issuance of writs of certiorari. Although the Constitution does not expressly grant the Court certiorari jurisdiction in the state courts, the Court may grant certiorari for those state court decisions that implicate federal law. Statutes limit certiorari jurisdiction to federal questions that have been decided in final judgments of the states’ highest courts. The Court may review final judgments or decrees of the states’ highest court if the validity of a treaty or statute of the United States is questioned. It may also review a state court decision if a state statute is viewed as violating the Constitution, treaties, or laws of the United States. The Court may not review a case involving federal law if the state court's decision can be upheld purely on state law. The Court reviews the majority of its cases through appellate jurisdiction. Within its appellate jurisdiction, the power to grant or deny certiorari gives the Court discretion in determining which cases it will review. The passage of the Judiciary Act of 1925 greatly expanded the Court's certiorari jurisdiction in an effort to reduce its overwhelming docket of cases. The act also enhanced the Court's status and power by largely allowing it to set its own agenda. Since the act's passage, the number of certiorari petitions greatly expanded, and by the 1970's, writs of certiorari were responsible for 90 percent of the Court's caseload. The Court reviews petitions for writs of certiorari solely at its discretion. If the Court grants certiorari, it agrees to review the judgments in question in that case. It will generally simply issue its decision to either grant or deny certiorari without giving any explanations for the decision. Certiorari is essential to the Court's functioning because of the high number of cases brought to it each year. In the late twentieth century, the Court granted full review to about 160, or 6 percent, of the nearly 5,000 cases submitted through petitions for writs of certiorari each year. If the Court decides not to hear a particular case by denying the petition for a writ of certiorari, there are almost no other avenues that the petitioner can pursue to have the lower court's judgment reviewed. The Court grants writs of certiorari only for compelling reasons. It pays special attention to resolving conflicts among the federal courts of appeals, the federal district courts, and the state courts on important legal principles or issues of law.


Petitions

A party to any civil or criminal case in which a judgment was entered by a state court of last resort or a U.S. court of appeals may petition for a writ of certiorari requesting the Supreme Court to review the lower court's judgment. A party may also petition the Court for a writ of certiorari in a case in which a judgment was entered by a lower state court if the state court of last resort has issued an order denying its discretionary review. Parties involved in the same judgment may file a petition jointly or separately. The person petitioning the Court for a writ of certiorari is known as the “petitioner” and the opposing party as the “respondent.” The petition must be accurate, brief, and clear in its presentation of the information necessary for the Court to review the case. The petition contains the questions the petitioner wishes the Court to review, when and how these questions were raised, and the names of the parties involved in the proceeding of the court that rendered the judgment in question. It also includes citations of the courts’ and administrative agencies’ opinions and orders issued in the case, the basis for the Court's jurisdiction, and the constitutional provisions, treaties, statutes, ordinances, and regulations involved in the case. All this information is necessary for the justices to review the petition and make a sound judgment on whether the Court should review the case.


Review of Petitions

The Court may review cases on appeal, by certification, by an extraordinary writ, or by certiorari. The Court must review cases on appeal, meaning that Congress has mandated review of that type of case, whereas the Court may grant or deny certiorari at its discretion. Because Congress eliminated most categories of appeals in 1988 and original jurisdiction represents only one or two cases a year, the majority of the cases the Court hears are those granted certiorari. Each justice handles the petitions for certiorari sent to the Court differently; however, justices generally either depend on memos written by their own law clerks or those prepared by clerks in the certiorari pool. Some justices have one of their law clerks read the petition and prepare a memo for them recommending what action the Court should take. Other justices use the certiorari pool that began in 1972 at the behest of several justices. In the pool, the petitions are divided randomly among the clerks, and the clerks read each petition assigned to them and prepare a single memo for all the justices. The justices’ individual clerks then receive the memos and may mark them for their particular justice. These memos contain a brief summary of the case, the relevant facts, the lower court's decision, the parties’ contentions, an evaluation of the petition, a recommendation for action, and any additional information necessary to an understanding of the case. Cases the justice feels are worthy of review are added to the Court's list of petitions to be voted on by all the justices. The justices then discuss these cases at their twice-weekly conferences. The Court also schedules several daylong conferences in September to discuss those petitions that have accumulated over the Court's summer recess. About 70 percent of the petitions for certiorari do not make the discussion list and are automatically denied certiorari. The chief justice announces those cases that the justices will discuss, and the justices then vote in order of seniority on whether to grant or deny certiorari. The justices may speak on an individual case if they feel it merits discussion rather than simply a vote. The Court will grant certiorari if four of the nine justices are in favor of the petition. The justices developed this informal rule of four after the 1891 Judiciary Act broadened the Court's discretionary jurisdiction. The rule became public knowledge in 1924. Clerks, secretaries, and visitors may not be present at these conferences, and the Court does not release its votes on certiorari petitions to the public. Justices who dissent from the decision to either grant or deny certiorari rarely publish their dissent or their reasons for dissenting. If the Court grants the petition for a writ of certiorari, the Court clerk will prepare, sign, and enter the order and notify the council of record and the court whose judgment is in question. The clerk will also schedule the case for briefing and oral argument before the Court. A formal writ of certiorari will not be issued unless specially directed. If the Court denies certiorari, the clerk will prepare, sign, and enter the order and notify the counsel of record and the court whose judgment was in question. A denial of certiorari simply means that the Court will not review the case. It does not mean that the Court agrees with the lower court's ruling although that ruling will stand. The denial of certiorari does not constitute a ruling on any legal issues raised by the case although some scholars would argue that it is an informal indication of the Court's position.



Further Reading

  • Robert G. McCloskey's The American Supreme Court (4th ed. Chicago: University of Chicago Press, 2005) offers a good general introduction to the Supreme Court and its jurisdiction. Doris Marie Provine's Case Selection in the United States Supreme Court (Chicago: University of Chicago Press, 1980) and Lee Epstein and Jack Knight's The Choices Justices Make (Washington, D.C.: Congressional Quarterly, 1998) both offer an overview of the Court's vital process of deciding which cases it will review. Peter Linzer offers a view on whether the Court's denial to review cases informally constitutes a decision on the merits of the case in his article “The Meaning of Certiorari Denials” in the Columbia Law Review 79, no. 7 (November, 1979): 1227-1305.