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[Inside Litigation, March 1987, Volume 1, Number 5 at page 27. Reproduced with permission granted from Aspen Law & Business/Panel Publishers (www.aspenpub.com).]

Opposing Review: The Art of Finding "Uncertworthiness"

In opposing certiorari, the odds are with you. Nonetheless, there are steps you can take to enhance even further the prospect that Supreme Court review will be denied

By Andrew L. Frey, Kenneth S. Geller, and Daniel Harris

This article is the first of two parts; the second part is "Opposing Cert: Addressing the Issues Presented." Andrew Frey and Kenneth Geller, partners in the Washington, D.C. office of Mayer, Brown & Platt, served for many years as deputy solicitors general in the Department of Justice. They write regularly on appellate advocacy for Inside Litigation. Daniel Harris, a partner in Mayer, Brown's Chicago office, clerked for Justice Brennan.

Much has been written about how to prepare an effective petition for a writ of certiorari invoking the discretionary jurisdiction of the Supreme Court of the United States. Far less has been said about how to defeat a certiorari petition, though for every loser seeking to have a lower-court decision overturned there is a winner seeking to preserve victory. Opposing Supreme Court review, like seeking it, is quite different from most other things lawyers even experienced litigators are called to do. Just as there is an art to finding something "certworthy" in a seemingly routine appellate case, so too is there an art to finding a way to show "uncertworthiness" in a case that otherwise seems destined for the Supreme Court. In this article we will offer suggestions for success in avoiding the risk of loss, the expense, and the delay attendant upon the grant of your opponent's certiorari petition.

This is basically a happy subject, for you as a litigator can expect more success in this endeavor than in virtually anything else you do. The Supreme Court's certiorari jurisdiction is entirely discretionary. The Court is asked to hear more than 4,000 cases annually, most by way of certiorari,(1) but the number that actually receive plenary review is defined by the size of its argument calendar, which accommodates at most 160 one-hour arguments. A handful of other cases will be summarily reversed by the Court or vacated and remanded to the lower court for further consideration (e.g., in light of some relevant intervening Supreme Court decision). But overall, your success rate should approach the fielding percentage of a sure-handed third baseman 95 percent or better.

What this means, of course, is that most certiorari petitions have no chance whatever of being granted, even if no brief in opposition is filed.(2) Others so clearly cry out for a place on the Supreme Court's docket that no feat of lawyering is likely to prevent a certiorari grant. But each year there are perhaps 400 cases that are viable certiorari candidates; in those cases, the difference between grant and denial of review may well be a product of the lawyer's advocacy. It is those cases we address here.

Overview. It is often emphasized that because so many certiorari petitions must be screened by the Court, only a few minutes are available to consider each individual petition. This is true for the justices themselves and for most of the law clerks who will come in contact with the case, and it means that brevity and lucidity are essential to effective advocacy at this state of your case. But do not overlook the phenomenon of the "cert pool," in which six of the justices participate (Justices Brennan, Marshall, and Stevens do not). Under the pool arrangement, the initial screening of a petition is the responsibility of only one of the six participating chambers. This enables the pool clerk (with responsibility for only one-sixth the number of cases) to prepare a longer and more thorough memorandum than would otherwise be possible. That memorandum is then circulated to all participating chambers. Obviously, the analysis and conclusions of the pool memorandum can be very influential in the final decision, and you should keep in mind that one pair of eyes will be giving your case a closer look.

Like the advocate seeking certiorari, you must approach your task with an appreciation of the criteria governing the Court's exercise of its discretion, which are set forth in Supreme Court Rule 17. There are four principal grounds for granting review, listed here roughly in order of descending importance: (1) that the decision in question creates a conflict among the federal courts of appeals, among state courts of last resort, or between courts in those groups; (2) that the court below has decided an important question of federal law that should be decided by the Supreme Court; (3) that the decision below conflicts with controlling Supreme Court precedents;(3) or (4) that the Supreme Court's power of supervision of lower courts should be invoked to review an action that seriously departs from "the accepted and usual course of judicial proceedings."

Perhaps the most important thing to understand and the most difficult for the novice Supreme Court litigator is that the certiorari decision does not depend, initially at least, on the correctness of the decision of the lower court. The raison d'etre of the Supreme Court is not the correction of error in individual cases, but the resolution of legal issues of national importance. While, as we will discuss in next month's installment, the merits are not irrelevant to the certiorari decision, your task is not to offer the Court a carefully crafted and tightly reasoned analysis of the merits of your case. Rather, your response should be directed primarily to showing that the case is not certworthy that is, that it does not satisfy the criteria of importance embodied in Rule 17.

Formalities. Your first step in preparing the brief in opposition should be to ensure that you have read Rule 22 and that you understand the relevant formal requirements, such as time limits (30 days), allowable length (30 pages, if printed), cover color (orange) and format, entry of appearance of counsel, etc. The Supreme Court Clerk's Office is normally very helpful in responding to inquiries form counsel about such matters. The clerk is also fairly liberal about granting a first extension of time to file a brief in opposition. The main exception to this is if the extension you seek will carry your case past the cutoff date for consideration of certiorari petitions at the end of the term (this date is usually about the end of May).

Perhaps the most important thing to understand is that the certiorari decision does not depend, initially at least, on the correctness of the decision of the lower court.

Questions presented. This is a matter of great importance in drafting the petition, but of less importance to the brief in opposition. Reformulation of the question is desirable if the petition has stated it in a way that is misleading or incomplete, especially if the petitioner's version makes the case appear more certworthy than it really is. On the other hand, if the question stated in the petition is garbled an confusing, your best bet may simply be to repeat it verbatim.

Statement of facts. Given the limited time that the justices and law clerks, including the pool law clerk, can devote to any one case at the cert stage, the statement of facts in the brief in opposition will probably be skimmed quickly or even skipped entirely. You should avoid a lengthy and detailed factual recitation that merely mirrors the statement in the petition. Confine the statement to the facts most directly pertinent to the issues presented for review, with particular emphasis on those facts that the petition may have described in a misleading way. If certain facts are materially related to a specific legal argument, they are likely to get more attention if set forth clearly in the argument section of the brief.

Argument. The overarching principles are brevity and clarity. Even the clerk preparing the pool memo cannot spend a long time perusing your brief in opposition, and others are unlikely to do anything more than skim it. If you have one or two telling points to make for example, that the claim of conflicting decisions on which the petition rests is spurious or that the issue presented was not properly preserved below make them clearly and without excessive detail, so that the point will not be lost on even the casual or hurried reader. Do not bury your best arguments on certworthiness in a barrage of points about the legal merits of the case or dilute them by coupling them with unpersuasive arguments against review.

Even if your case involves a legal issue that appears to be certworthy, the chances are still good that an effective argument can be made against deciding the issue at this time and in your case. Remember that there are more certworthy cases clamoring for attention than there are spaces on the docket. The result is that any good reason that can be given for not selecting your case from among that group is likely to be seized by the Court. Here is a checklist of points that, if available, can help you show the Court that the glitter in your adversary's case is but fool's gold:

  • The petition is out of time. You won't often be so lucky, but if this is true in your civil case, you don't need to worry about what else to say in opposition, for the Court has no jurisdiction to hear the case. (Doublecheck with the clerk's office before filing an opposition that says nothing more than that the petition is out of time. If the clerk confirms your calculations, file it.) If the case is criminal, the tardiness of the petition is not jurisdictional, but it remains a point well worth mentioning, for the Court is likely to be unwilling to excuse your adversary's failure to heed its rules.

  • The case in interlocutory. 28 U.S.C. 1257 limits the Court's jurisdiction over state court decisions to "[f]inal judgments or decrees." There can in certain circumstances be considerable controversy over the meaning of the finality requirement,(4) but any colorable contention that the case is interlocutory should be set forth. This tactic is sound even in federal cases, where there is no jurisdictional requirement of finality; the Court, sensitive to the need to avoid advisory opinions, is disinclined to decide an issue when the petitioner may win the case on some other ground on remand. The Court knows that if the petitioner loses on remand and the issue he now seeks to present remains material to the outcome of the case and important enough for its consideration, certiorari can be granted to review the final judgment. Accordingly, unless there is some compelling need for prompt resolution of the issue, the Court will probably forgo the pleasure of wrestling with the issue in an interlocutory case. The importance of this point is evidenced by the practice of the solicitor general to file a response in many such cases pointing out only that the case is interlocutory and withholding any other discussion of certworthiness unless the Court requests a response on the merits.

  • There is a problem of ripeness, mootness, or standing. The Supreme Court is very particular about the case-or-controversy requirement and has no interest in wasting its time by reading briefs and hearing oral argument in a case only to discover that it has become moot or that the petitioner lacks standing. (Be careful with these sorts of arguments, however, if you in fact care about retaining your victory below, since they could lead the Court to grant the petition and vacate and remand the case.)

  • The case does not present a question of federal law. In state cases, show if you can that the issue presented was decided not as a matter of federal law but as a point of state law that the Supreme Court has no power to review. Once the Court has granted certiorari, it is reluctant to let go of the case on this ground,(5) but a colorable showing that no federal question was d ecided is effective in defeating certiorari. A nonfrivolous argument of this sort is effective even if not clearly correct. After all, the Court hardly has time at the petition stage to resolve the otherwise unimportant question of whether the decision in your case rested on state or federal law, but it will have to do so if it grants review, and the risk that it will have wasted a valuable spot on its docket and a lot of its own time if it agrees with you that the case does not turn on federal law is a powerful disincentive to hearing the case.

  • An independent ground exists for the decision below. This argument is available in both federal and state cases. As with the preceding point, if you can show that the judgment of the court of appeals or state supreme court may rest on an independent ground not worthy of the Court's attention or not subject to its jurisdiction, this will mean that however interesting and important the issue presented in the petition may be, the Court would be rendering a decision that is or amounts to an advisory opinion. This it is disinclined to do.

  • The petitioner has failed to properly present or preserve the issue below. If you can create even a substantial doubt on this point, it is extremely helpful to beating certiorari, since it suggests to the Court that it may be unable to resolve the issue certworthy though it may be in your case. The Court will probably prefer to wait for a case without this complication. After all, it knows that if the issue is important enough, it is likely to arise in plenty of other cases.

  • The issue cannot be reached without overturning fact findings adverse to the petitioner or becoming bogged down in complicated questions of fact. The Court sits to determine questions of law. While it must be concerned about sustainable fact findings when it is deciding a case on the merits, the Court will not take a case to decide factual issues, however wrongly they may appear to have been decided below. Accordingly, the Court will probably steer clear of your case, significant though the issue presented by the petition may be in the abstract, if it perceives a substantial likelihood that it will have to wade through contentious factual disputes or review factual findings adverse to the petitioner before reaching that issue. If you can make such a showing, you should be able to persuade the Court to wait for a cleaner vehicle to decide the petitioner's legal issue.

    Remember that there are more certworthy cases clamoring for attention than there are spaces on the docket.

  • The opinion below is unpublished. The issue may be important, but the decision below is not precedent if it is contained in an unpublished opinion. Accordingly, even the court that made the ruling in your case may reach the opposite conclusion in the next case presenting the issue. While the Supreme Court will occasionally grant review of a juicy issue despite this impediment, it will not ordinarily do so.

Responding directly to the legal issues. You may not be fortunate enough to be able to show that particular attributes of your case make it an inappropriate one in which to decide the legal issue presented by the petition. Even if you can, you will still usually want to make some direct response to the petitioner's arguments. In the conclusion of this article, we will discuss the various ways to respond to claims of conflict among lower court decisions and to minimize the importance of the issue presented by the petition. We will also consider to what extent your brief in opposition should argue the merits of the legal issues presented by your case.

In addition to tips about the content of the brief in opposition, we will tell you about some other aspects of the process that can be of interest or of importance. Can you find out when the Court will act on the petition? Is there anything you should do if the Court asks the solicitor general to provide the views of the United States on your case? What should you do if the Court is holding the petition in your case for action after and in light of its decision in some other pending case? What if anything should be done to round up amicus curiae support for your position or to deal effectively with petitioner's amici?

Copyright 1999 Mayer, Brown & Platt. This Mayer, Brown & Platt article provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

1. A portion of the Court's docket involves cases falling within its theoretically obligatory appeal jurisdiction. Cases reviewable by appeal are also usually disposed of without full briefing and argument, but they are somewhat more likely than certiorari cases to be heard by the Court. There are some material differences between resisting an appeal and opposing certiorari for example, in appeals there is likely to be more occasion to focus on questions relating to the Court's jurisdiction and more reason to provide a fuller discussion of the merits but much of what we say here applies also to appeals.
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2. If you are confident that yours is such a case, you may be able to save money and expedite the successful conclusion of the case by writing a letter to the clerk of the Supreme Court waiving your right to file a response unless the Court wishes to receive one. The clerk will then promptly schedule the case for an upcoming conference, and, if the Court agrees with your assessment, the petition will swiftly be denied. This is a low-risk procedure, for the Court almost certainly will not grant the petition without giving you an opportunity to respond.
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3. It may be surprising to the uninitiated that this ground does not rank first on the list. In the view of the justices, however, their primary job is to establish the precedents, not to police occasional departures of them. Unless the error recurs several times or otherwise threatens to undermine the authority of its earlier decisions, the Court is quite likely to let the occasional aberrant misapplication of its precedents pass undisturbed.
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4. See, e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).
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5. See Michigan v. Long, 463 U.S. 1032 (1983).
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