Granting Certiorari:
How does the Supreme Court decide
which cases to decide?
Virtually
all the cases decided by the United States Supreme Court have been granted a
writ of certiorari. Certiorari is a Latin word that means, “to be informed of.”
Black's Law Dictionary defines
a writ of certiorari as: “An order by the appellate court to bring the case
before them when the court has discretion on whether or not to hear an appeal.” The Court does not have to grant writs of certiorari,
and most of the petitions requesting one are denied. Because of this fact, it
is helpful to consider the criteria used by the Supreme Court to determine
whether or not a case is certworthy. The Court’s Rule 10 briefly specifies some
of the conditions under which they are likely to grant a writ of certiorari.
These include resolving conflicting rulings between federal appeals courts
and/or state supreme courts on important federal questions, and when a lower
court “has decided an important question of federal law that has not been, but
should be, settled by” the Supreme Court.
Other than Rule 10’s fairly vague statements that apply to many more
cases than the Court could possibly address each year, the justices rarely
explain why petitions for certiorari are granted or denied. However, scholars,
lawyers, and journalists have investigated this topic, providing us with some
insights.
Certiorari trends
Congress has passed
two laws in the last 17 years that have made it easier for the Court to limit
the number of cases it chooses to hear, while making it more difficult for
certain groups to file for a writ of certiorari. Since 1995, Congress and the
courts have prohibited prison inmates from filing civil rights suits in federal
court until they have first used up all possible avenues of appeal within the
prison system. In 1988, Congress gave the justices increased discretion over
whether or not to hear a case. Previously, statutes had required the Court to
hear certain types of cases such as when a state law was deemed unconstitutional
by a federal appeals court. As the justices have taken advantage of their
greater freedom not to hear cases, the Court’s docket has lightened. In 1976, for instance, the Court heard 176
cases. By 1992 that number was down to 107. From 1995 until 2005, the Court
issued full opinions in between 76 and 82 cases per term.
Petitions from poor people
Among the cases the Court has selected to
hear, very few are in forma pauperis,
or cases filed by people who cannot afford the filing fee. Over the last three terms,
an average of only one-tenth of one percent of pauper’s petitions were granted
review (8 cases out of 6,386 in 2002-2003) compared to an average of 4% of paid
cases (83 cases out of 1,869 in 2002-2003) during the same terms.
Fundamental
aspects of the certiorari process
The
following criteria have been adapted from: H.W. Perry. Deciding to Decide:
Agenda Setting in the
1.
There
is a presumption against granting certiorari. There
are three possible reasons for this: (1) because there is so little time and
there are so many cases, the Court has to reject most of them; (2) the Court
has plenty of time, but has relatively few worthy cases from which to select;
or (3) the Court is both strapped for time and
many of the cases are not worth hearing.
2.
From
a legal standpoint virtually all of the cases that come before the Court are
fungible. That is, one may be used in place of another.
This is often a bitter pill for litigants to swallow, but is important to
understand. The Court is typically not a place to right wrongs in individual
cases, but a place to clarify the law. So, what is important is the legal issue
the case raises, not the case itself.
Criteria for
judging a case “uncertworthy”
1.
Absurd
Claims ("nut cases")
One
example cited by Perry is a petition that claimed a man had been wronged
because his wife got out of bed and left him alone on Christmas Eve. Perry
suggests that up to 10% of petitions for certiorari fall into this category.
2.
Frivolous
Issues
These
fall into three categories: fact-specific cases (the resolution of which would
add nothing to legal doctrine), cases involving insufficient evidence (the
claim is there wasn't enough evidence to warrant the lower court's decision),
and diversity cases (which involve an interpretation of whether a federal court
understands state law).
3.
“Clear
Denies”
These
are cases the Court is simply unwilling to hear. The most frequently mentioned
example in Perry's research was ineffective assistance of counsel cases. Common
parlance: the Court just isn't going there. (NOTE: In recent years the Court has accepted
a few ineffective assistance of counsel cases, and some of the justices have
publicly expressed concern about the quality of legal representation sometimes
provided to indigent defendants in capital cases. However, there is still great reluctance to
second guess lower court judges who are generally in the best position to
determine whether counsel provided ineffective assistance.)
4.
Lack
of Percolation
Cases
that involve issues that are too new (that haven’t “percolated below”) are
typically not chosen. In general the Court will put off rendering a decision on
an issue for as long as possible. The rationale for delaying is that the Court
can benefit from the analysis of others (including law professors who write
articles in law review journals, and the decisions and reasoning of judges in
lower courts).
5.
Cases
with Bad Facts / Cases that Serve as a Bad Vehicle
Cases
must present the issue clearly to be granted a writ of certiorari. They don't
want “bad” (messy or overly complicated) facts that muddy the legal issue being
decided. For example, Perry quotes a clerk who said “If they are going to rule
on an insanity case, they wouldn't want to use Charles Manson to make a
decision on that issue” (p. 236).
6.
Pipeline
Considerations
The
Court may avoid a case that is more complicated, even it if raises an important
issue, if it feels that a better, cleaner case is coming up through the
judicial pipeline. Remember that the
justices view the cases as fungible (essentially interchangeable).
7.
Intractable
Issue
If
the Court just doesn't know what to do about an issue and can't see a solution,
they may decide to stay out of it.
Criteria for
judging a case “certworthy”
It takes a
combination of these criteria for the Court to grant certiorari.
1.
Circuit
Conflict
This
is the premier criterion used by the Court. It is utilized when there is a
conflict among the lower federal (occasionally, the state) courts about an
issue. The conflict must be intolerable and current. The reputation of the
lower courts that are in conflict is a variable when applying this criterion.
If the lower court is generally considered of low quality then the Court will
often not take the case, figuring that the system will “cleanse itself”
eventually with other judges.
2.
Importance
There are a number of different ways that a case can be
important enough to attract the Supreme Court’s attention. Unusual or “one of a kind” cases like United States v. Nixon (concerning the
Watergate tapes) are somewhat more likely to be heard. Likewise, cases that are important to the
polity because of the political and societal impact of their resolution, such
as Brown v. Board of Education and Roe v. Wade, can attract the Court’s
attention. Finally, cases of substantial
legal significance, such as a clarification of a rule of evidence or an
administrative procedure, can be important enough to merit the Court’s involvement. Their importance stems from the confusion
that has been created in the legal system by different rules in different
circuits.
As a general rule, two other factors affect the Court’s
assessment of the importance of a case: breadth (potential impact on many
people) and the effect on the federal government. If the Solicitor General of
the
Public pressure can work to encourage the Court to either grant
or deny certiorari. The Court took no cases involving gay rights until the late
1980s and waited more than twenty years to take a case about the
constitutionality of anti-miscegenation statutes (which prohibited people of
different races from inter-marrying).
3.
Areas of Interest to
the Justices
Some justices may have a particular
"hobby horse" and that can influence whether the Court grants
certiorari. A justice’s area of interest is often determined by personal history
and geographic origin. For example, justices from the West may favor granting
certiorari in water rights cases.
Another example: a justice whose earlier law practice involved
representation of large corporations may believe the Court should accept more
business cases.
4.
Egregious Legal Errors
in Lower Courts
Flagrant abuses of justice or flagrant
disregard for accepted legal doctrine will sometimes lead the Court to grant
certiorari. Overall, however, the justices do not see their role as correcting
errors of lower court judges.
A
study of the 1982 term of the court (by Caldiera and Wright) identified several
variables associated with the granting of certiorari. The top three variables, in order of
importance, from that study were:
1. the
2. there were more than three amicus briefs
filed in support of certiorari; and
3. there was an actual (not just alleged by
petitioner) conflict (either between federal circuit courts, between state
courts of last resort, between a federal court and a state court, or between
the court below and existing Supreme Court precedent).
This
study adds to the Perry materials by suggesting that “importance may be
measured by the Court, in part at least, by the number of amicus briefs filed
at the certiorari state” (i.e., not just at the merits stage, after cert has
been granted).
References: Perry, H.W. Deciding
to Decide, Agenda Setting in the
Caldiera
and Wright, “Organized Interests and Agenda Setting in the U.S. Supreme Court,”
82 American Political Science Review 1109, 1118 (1988) as reported in
Brenner, “Granting Certiorari by the United States Supreme Court: An Overview
of Social Science Studies,” 92 Law Library Journal 193, 198
(2000)