Certiorari, Writ Of

Certiorari, Writ Of, the primary means by which a case comes before the United States Supreme Court. Litigants who seek review by the Supreme Court petition the Court for the writ, and if granted, the case comes before the Court for disposition. The party seeking review is known as the petitioner, and the opposing party is the respondent.

The Supreme Court, like any court, must have jurisdiction before it can decide a case. Its jurisdiction is determined by Article III of the Constitution and by congressional statute. Certiorari jurisdiction, given to the Court by Congress, accounts for the vast majority of cases. In addition to certiorari, there are four other ways a case can come before the court: by original jurisdiction, on appeal, by certification, or by an extraordinary writ. The last two are rarely used. Appeals and cases of original jurisdiction have mandatory review in the Supreme Court, whereas the decision to grant certiorari, or “cert,” is solely at the discretion of the justices. Article III of the Constitution identifies the cases that qualify for original jurisdiction, and Congress has established categories of cases that qualify as appeals. The terminology can be a bit confusing because the word appeal is commonly and generically used to mean taking a case to a higher court for review. Technically, however, when a case is “on appeal” before the U.S. Supreme Court, it means that Congress has mandated review for this type of case. Since 1988, however, most categories of appeals have been eliminated. Therefore, except for cases of original jurisdiction, which usually constitute about one or two cases a year, and a few other extraordinary types of cases, most cases today are before the Supreme Court on a writ of certiorari.

The Court has not always had broad discretion in case selection. Before 1925 most of its docket consisted of cases for which review was obligatory. The workload had grown to such an extent, however, that on 13 February 1925, an act known as the “Judges' Bill” was passed. The most ardent supporter of the legislation was Chief Justice William Howard Taft. The act greatly expanded the Court's certiorari jurisdiction, which meant that its docket was to become largely discretionary. By the 1970s, certiorari accounted for about 90 percent of the Court's workload. Appeals constituted about 10 percent of the Court's docket until the 1988 legislation effectively eliminated most categories of appeals (see Judicial Improvements and Access to Justice Act). Even prior to 1988, however, the Court often finessed its appellate jurisdiction by “dismissing” appeals by not giving them full review.

Of the approximately five thousand cases a year for which review by the Supreme Court is sought, fewer than 5 percent are granted cert. If a case is denied cert, the decision below stands, and with a few exceptions, there are no further avenues of review. As a matter of law, a denial of cert has no meaning other than that the particular case will not be reviewed. It does not mean that the Court believes that the case has been correctly decided in the court below, nor may lawyers cite a denial of cert as evidence of the Court's position on the issue. Some observers, however, argue that a denial of cert can be read to mean something more, which of course it may, although the Court continues to disavow such a position.

The justices have been intentionally vague as to what makes a case “certworthy.” Rule 10 of the “Rules of the Supreme Court of the United States” purports to offer criteria, but it is of little help.

A review on writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the Court's discretion, indicate the character of reasons that will be considered.

With one exception, the criteria that follow the statement offer little guidance as to what the Court really looks for when selecting a case. In short, the rule is almost a tautology: cases are important enough to be reviewed by the justices when the justices think they are important. Or as Justice Frank Murphy put it, “Writs of certiorari are matters of grace” (Wade v. Mayo, 1948, p. 680). The one criterion in rule 10 that is helpful in determining whether or not a case will be deemed “certworthy” is when federal circuit courts of appeals are in conflict over an issue. Though a “circuit split” does increase the likelihood that a case will be reviewed, it does not guarantee review. It is not always obvious when circuit courts are in conflict. Moreover, the Court often prefers to wait for additional courts of appeals to weigh in on a matter before it decides to resolve it. Nevertheless, the justices do see resolving conflicts among the circuit courts as one of their primary responsibilities.

Deciding what to decide is one of the most important functions performed by the Supreme Court. Given the difficulty of access to the Court, understanding how and why one case is selected and another rejected is important both in determining how the Court works and how access is achieved. Agenda setting has both behavioral and normative implications. To the extent that there has been scholarly interest in agenda setting beyond jurisdictional and procedural questions, it has mostly been by political scientists. They have focused much of their research on trying to determine factors that increase the likelihood of review. Results have been mixed, although there seems to be credible evidence to suggest that the likelihood of review is enhanced if there is a genuine conflict among circuit courts of appeal; or, if the United States is the petitioning party in the case; or if an amicus brief is filed urging a grant. Likewise, it has been demonstrated that a justice's vote on certiorari is related to his or her later vote on the merits, that is, the decision to affirm or reverse the decision below. Despite these insights from research, it is still very difficult to predict grants of certiorari in individual cases.

Until recently, little was known about the certiorari decision process. Actually, there are nine separate processes because each justice handles cert differently, but these are primarily individual variations on two basic routines. In some chambers, the justice and law clerks do all of their own cert work. The clerk reads the petition and writes a memo to the justice. The clerk notes the important issues, analyzes the case, and recommends a grant or denial. Eight justices, however, are members of the cert pool. When petitions arrive at the Court, they are divided randomly among the justices in the pool. One clerk writes a memo for all pool chambers. Upon receipt of the pool memo, clerks will then “mark‐up” (annotate) the pool memo for their individual justices. Each justice reads the memo and makes a tentative decision on how to vote on cert.

Prior to the conference, the chief justice circulates a “discuss list.” This list contains all the cases thought worthy of discussion at conference. Any justice can add any case to this list. Cases that do not make the discuss list—about 70 percent—are automatically denied cert. In conference, most cases receive very little discussion. The chief justice announces the case and the justices simply vote, in order of seniority, to grant or deny the case. If any justice feels that a case merits discussion, the justices speak and vote in order of seniority. For some time, scholars thought votes were taken in reverse order, but even if this once was the case, it is not so now.

If four justices vote in favor, cert is granted. This “rule of four” is an informal rule of long standing developed and adhered to by the justices. Cert votes are not made public. Some justices have recorded cert votes and left them in their private papers, but usually it is impossible to know how the justices voted. From time to time, a justice will feel strongly enough about a case to note publicly a dissent from the denial of certiorari. This may be accompanied by an opinion outlining why the case should have been taken. Some justices, however, disapprove of any public airing of cert votes and refuse to write dissents from denials. Dissents from denial of cert are uncommon except that Justices William Brennan and Thurgood Marshall always noted that they would grant cert in cases involving the death penalty because they believed capital punishment is unconstitutional.

See also Judicial Power and Jurisdiction; Workload.

Bibliography

Gregory A. Caldeira and and John R. Wright , Organized Interests and Agenda Setting in the U.S. Supreme Court, American Political Science Review 82 (December 1988): 1109–1127.
H. W. Perry, Jr. , Agenda Setting and Case Selection, in American Courts: A Critical Assessment, edited by John B. Gates and Charles A. Johnson (1990), pp. 235–253.
H. W. Perry, Jr. , Deciding to Decide: Agenda Setting in the United States Supreme Court (1991).

H. W. Perry, Jr.