You have just been handed an unexpected defeat in the federal
court of appeals or state supreme court. Your client calls, complaining that the
appellate ruling is legally insupportable and totally unjust. She wants relief;
she wants you to take the case to the United States Supreme Court. You
picture yourself arguing before the Justices and your name appearing in the U.S.
Reports. You ponder where on your office wall to hang, suitably framed, the
feather quill pen given to all counsel who argue before the Court.
If at this point your reverie is broken by the realization that
you know next to nothing about "taking a case to the Supreme Court," do not
worry. A lack of knowledge about Supreme Court practice and procedure is nothing
to be ashamed of. Although law school instruction largely revolves around
studying Supreme Court decisions and most law students know that you ask the
Court to hear a case by filing a petition for writ of certiorari, hardly anyone
leaves law school knowing the practicalities of getting a case to the High
Court. Our aim here is to provide a brief primer on the certiorari process. For
much more detail on seeking Supreme Court review, including a wealth of
illustrations and useful forms, be sure to consult Stern, Gressman, Shapiro & Geller, Supreme Court Practice (7th ed. 1993),
the Supreme Court practitioner's bible. You'll also need to study the current
Supreme Court Rules.
Lawyer and client contemplating filing a petition for
certiorari need to understand that obtaining Supreme Court review is a daunting
task. According to the last Harvard Law Review round-up, over 7000 petitions for
certiorari were filed during the 1994 Term of Court: 2151 in paid (i.e.,
non-indigent) cases and 4,979 in in forma pauperis (IFP) cases. The Court
granted review in 83 paid cases (3.9%) and 10 IFP cases (0.5%). It disposed of
another 66 cases by summary affirmance or reversal or (most commonly) by simply
vacating the judgment below and remanding for further proceedings in light of
some intervening Supreme Court decision (a resolution referred to as a "GVR" —
Grant, Vacate, and Remand). The tenure of Chief Justice Rehnquist has seen a
sharp decline in the number of cases the Court hears on the merits. Only 90
cases were argued in the 1995 Term, compared to 167 in the 1987 Term and 116 in
the 1992 Term.
Even these uninspiring numbers exaggerate the chance that the
Court will grant a private party's petition. Many argued cases involve federal,
state, or local government petitioners; government entities were parties in 31
of the cases heard during the 1994 Term. The United States, in particular, has
an enviable record when it petitions for certiorari. Moreover, many cases on the
argument docket involve criminal law issues. If you include habeas corpus cases,
no fewer than 23 of 1994's argued cases lay on the criminal side of the docket.
So if your case involves a business issue, the odds that the Court will show any
interest are even longer.
Some Petitions Just Should Not Be Filed
It is an often-expressed view among members of the private
Supreme Court bar that the Court now passes over quite a few cases that it
should hear. Even so, there is no doubt that most of the responsibility for the
extremely low rate of grants of certiorari lies with petitioners. It is as true
today as when Justice Harlan voiced the complaint in the late 1950s that "a
great many petitions for certiorari reflect a fundamental misconception as to
the role of the Supreme Court" and have no chance whatever of being granted.
These petitions receive dismissive treatment. Justice Brennan routinely decided
that a case was not certworthy by looking at the "Questions Presented" on the
first page of the petition — and reading no farther. Justice Brennan could
decide so quickly, he explained in a 1973 law review article, because 60% of
paid petitions he saw were "utterly without merit." The Chief Justice, in a more
recent article, has chided that 2000 petitions each year are so implausible that
"no one of the nine [Justices] would have the least interest in granting them."
A sure-fire way to guarantee rapid denial of certiorari is to
file a petition disputing findings of fact rather than determinations of law;
presenting questions of state rather than federal law; or asking for review of a
decision that rested on adequate and independent state law grounds even if the
court below also addressed a federal issue.
Do not file a certiorari petition that falls within these
categories. Filing a hopeless petition disserves the client, who must pay the
$300 filing fee and many times that amount in counsel fees for preparing the
petition. It also has some potential to harm the lawyer. The Court has an
institutional memory, so counsel who repeatedly file frivolous petitions may
find that their briefs receive progressively less attention from the Justices
and law clerks. If your petition is clearly meritless, the respondent may not
even bother to file a brief in opposition. See Bishop, Opposing Certiorari in the U.S.
Supreme Court, Litigation 31, 32 (1994) (discussing the procedures
surrounding waiver of the brief in opposition to certiorari). So save your
client some money and preserve your own reputation: file a petition for
certiorari only if, upon careful review of the standards that the Court applies
in ruling upon petitions, you think that there is a chance that you can persuade
four Justices — the minimum number necessary to grant the writ — that the
Supreme Court should hear your case.
What Makes a Case Cert Worthy?
The first and most difficult thing to remember in analyzing the
certworthiness of your client's case — and certainly the most difficult aspect
of Supreme Court practice for clients to grasp — is that the merits of the case
that have been the main issue throughout the litigation are not of primary
concern at the petition stage. The Supreme Court is not a court of error; it
does not intervene simply to correct injustices and misapplications of the law.
See S. Ct. R. 10 (the writ is rarely granted "when the asserted error consists
of * * * the misapplication of a properly stated rule of law"). A petition
devoted exclusively to showing why the lower court made a mistake will almost
That is not to say that the merits are irrelevant.
Statistically, the Court reverses a majority of the decisions it elects to
review. Indeed, observation suggests that even when an issue is clearly
certworthy, the Court will sometimes pass over that issue in cases that it
expects to affirm, granting a petition only when it finds a case that it is
likely to reverse. For this reason, persuasive petitions for certiorari nearly
always explain why the judgment below was wrong. But they do so in a relatively
short section at the end of the petition, not as the lead argument. The idea is
not to argue the merits in the depth you did below and that would be necessary
later if certiorari were granted, but to say enough to give the Court a degree
of confidence that commonsense and justice are on your side. You will not be
able to devote more than a few pages of the 30 pages allotted for a petition for
certiorari to this discussion, for there are more important matters that must be
Circuit Splits And Issues Of National Importance
What are the indicators of certworthiness that should be the
focus of your petition? Supreme Court Rule 10 sets out factors that, while
"neither controlling nor fully measuring the Court's discretion, indicate the
character of the reasons the Court considers." These are that (1) the decision
below conflicts with decisions of one or more federal courts of appeals or state
courts of last resort on an important issue of federal law; (2) the court below
decided an important federal question in a way that conflicts with rulings of
the Supreme Court; (3) the court below decided a question of federal law that is
so important that the Supreme Court should pass upon it even absent a conflict;
or (4) (a category into which very few grants fall) the court below "so far
departed from the accepted and usual course of judicial proceedings, or
sanctioned such a departure by a lower court, as to call for an exercise of this
Court's supervisory power."
Ideally, then, the certiorari petition will demonstrate both
that the lower courts are in disarray on the issue the Supreme Court is being
asked to review and that the issue is of considerable national
importance. The conflict upon which you rely should be a real one, with cases
truly addressing the same issue and reaching different conclusions. One study
concluded that although 60 per cent of the petitions surveyed alleged a
conflict, that conflict was real in only 6 per cent of the cases. If you are
really lucky, the decision below may discuss cases from other jurisdictions and
acknowledge that a conflict exists. Short of that, be careful to demonstrate
that the holdings of the cases you rely on are at odds. Inconsistent dicta or
conflicting statements of general principle generally are not sufficient; nor
are conflicts within a single court of appeals or with a district court.
The fact that the lower courts are in conflict is not enough by
itself. You also have to show that the issue is one where uniformity counts —
that the conflict is going to be difficult to live with. For example, one of us
recently filed a petition on behalf of a pre-trial detainee who contended that
his constitutional privacy rights were violated in Cook County Jail when he was
routinely observed undressed and showering by female prison guards. The Seventh
Circuit, in an opinion by Judge Easterbrook, held that prisoners lack any right
to bodily privacy. Judge Posner dissented, so the case was immediately arresting
because of this sharp division of opinion between two respected jurists. Seven
other circuits have held that prisoners do have bodily privacy rights that in a
particular case must be weighed against the needs of prison officials, so there
was also a clear circuit split. By all objective indicators, the case was
certworthy. The court nevertheless denied certiorari. Though the petition argued
that the issue was important both because it involved human dignity and, more
practically, because prisoner privacy suits are very common, take up a lot of
resources, and could more efficiently be handled under a settled rule of law, we
suspect that most Justices thought the issue was not quite important
enough to warrant review. Such denials of certiorari in the face of a
circuit split are not unusual. Justice White counted 56 during the 1989 Term
(and thought this far too many). Beaulieu v. United States, 497
U.S. 1038, 1039 (1990).
The burden of showing that the federal issue presented for
review is of national importance becomes all the greater when there is no
conflict. The best way to meet this burden is to show that the decision below
has a significant impact not just on the petitioner but on a whole industry or
large segment of the population. For example, the Court granted the certiorari
petition one of us filed in Hartford Fire Insurance v. California,
No. 91-1111, to decide whether agreements between insurers on the terms of
standardized coverage forms were exempt from antitrust prosecution by the
federal McCarran-Ferguson Act. Though there was no conflict among lower courts,
the petition and amicus briefs filed by insurance industry associations argued
that the industry depends upon agreements as to terms; that such agreements are
necessary for insurers and beneficial to consumers; and that antitrust scrutiny
would therefore have tremendous practical consequences.
Studies have found that the filing of amicus briefs in support
of a petition increases the likelihood of a grant, so you should actively seek
out amici to help you persuade the Court that the issue presented is of broad
concern. You have a little extra time to mount this effort, since amicus briefs
are due not when the petition is filed but "within the time allowed for filing
the brief in opposition," which is 30 days after the petition is filed, barring
an extension. S. Ct. R. 15.
If the question raised in your petition is of consequence to
the federal government, the Court may ask the Solicitor General to file a brief
expressing the views of the United States before voting on your petition. If
that occurs, you would do well to contact the Solicitor General's office and the
relevant federal agencies to discuss the position the United States will take in
its brief. If you can persuade the SG that your case deserves further review,
the battle is more than half won. A 1992 study reported that the Court granted
88 per cent of petitions where the SG filed a brief supporting the petitioner
and denied 60 percent of petitions where the SG supported the respondent.
A petition for certiorari must be filed within 90 days after
the entry of judgment below (or denial of rehearing), absent an extension. The
petition must be in the Clerk's Office on the 90th day; the exception is that
you may mail your petition on the 90th day if you use U.S. Post Office mail and
get an official postmark (not a postage meter stamp). Do not send the
petition out on the 90th day by overnight courier. S. Ct. Rule 29.2. You may be
able to get up to a 60 day extension in which to file your petition, if you move
for one at least 10 days before the petition is due, but this depends on the
whim of the Justice assigned to your Circuit. Justice Stevens (Sixth and Seventh
Circuits) grants extensions in appropriate cases, for example, but Chief Justice
Rehnquist (D.C. and Fourth Circuits) usually denies extension requests. See S.
Ct. Rule 13.
The "counsel of record" on the petition must be a member of the
Supreme Court Bar. Membership costs $100 and obtaining it is not onerous, but
young lawyers are ineligible to join the Bar until they have been admitted to
practice before the highest court of a state for three years. S. Ct. Rules 5,
The contents of a petition are set out in Rule 14 and we will
not repeat them all here. The critical parts of a petition are three in number.
The first page of the petition is devoted to the all-important Question(s)
Presented. Try hard to limit yourself to one, two, or at most three questions;
more indicate an unfocused advocate aiming with a shotgun rather than a rifle
and reduce the chance your case will receive serious consideration. By all means
include a short introductory paragraph to the question(s) if this is
helpful to bring home the certworthiness of your issues.
The Statement is also extremely important. It is a history of
the case and any relevant background, including a description of the trial and
appellate court rulings. Here is an opportunity to soften up the Court to think
your petition is meritorious. If there was a good dissent in the court of
appeals, make the most of it here. If the industry background of the practice at
issue is important and in the record, lay it out. Remember that the Court likes
to review "clean" cases, in which there are no remaining factual disputes to
muddy the water and no procedural problems such as potential waiver of the
issues presented or a jurisdictional bar to decision. Do not run into the trap
of disputing factual findings in your Statement. If you think the Court may have
procedural concerns, try to show that there really are none or at least that
they do not make the case unsuitable for review.
The heart of the petition is the section entitled "Reasons for
Granting the Petition." This is where you describe the conflict among the lower
courts, persuade the Court of the practical importance of questions presented
(and of the need to address them now rather than after further "percolation" in
the lower courts), and briefly describe why you are right on the merits.
The petition (in a paid case) is filed in booklet form, which
can either be typeset by your printer or produced by you in camera- ready format
ready for the printer to copy and bind. An appendix setting out the decisions
below must be bound at the back of the petition. When you cite to those
decisions, cite to the pages of the appendix. Be sure to follow the rules as to
the proper format of the petition. See S. Ct. Rules 33, 34.
Once your petition is filed, the respondent has an opportunity
to file a brief in opposition showing why the case is unworthy of the Court's
attention. You then have 10 days in which to file a reply. S. Ct. Rule 15.5. Be
sure to do so — it is important to get in the last word and to rehabilitate the
claims made in your petition — and to reply in a timely fashion. The clerk will
then circulate all the briefs to the Justices and their law clerks.
Justice Stevens has his clerks read all the petitions. The
other Justices, however, have formed a "pool" to review petitions. A single
clerk from the pool is assigned to each case and writes a memorandum to guide
the Justices who participate in the pool. That memo discusses the certworthiness
of the petition and makes a recommendation as to its disposition. While the pool
memo does not always carry the day, it is immensely important. The Chief Justice
says that "with a large majority of the petitions" he does not "go any further
than the pool memo." Rehnquist, supra, at 264-65. Remember, when you are
crafting your petition, that your initial audience is one extremely busy law
clerk who is as likely as not reading your handiwork in the middle of the night.
Keep your papers short and readable, make your points in as simple and direct a
way as possible, and avoid rhetoric (which gets old for clerks reading hundreds
If one or more Justices have an interest in your case, it will
be put on the "discuss list," which means it will be discussed at conference and
then voted upon. About 15-30 per cent of petitions make it to the discuss list;
the others are automatically denied. Following the Court conference for which
your case is set, you'll soon learn whether you are one of the lucky few or will
have to await another opportunity for that feather quill.