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Certiorari Practice in the U.S. Supreme Court

Many lawyers have had clients who vow to take their case all the way to the United States Supreme Court!  Once in a while, a case arises that actually has the potential to get there.  What do you do when such a case comes across your desk?  How do you maximize your chances of getting the Supreme Court to accept your case for review?  Conversely, if you won in the lower court and want to keep that decision intact, how can you best dissuade the Court from taking the case?

The prospect of practicing before the Supreme Court may seem foreboding to the average lawyer.  But with a little care and forethought, taking a case before the Court may not be as daunting as you might think.

The best single piece of advice that can be given to anyone thinking about handling a case in the Supreme Court is to consult the bible of Supreme Court practice — Stern, Gressman, Shapiro & Geller, Supreme Court Practice (7th ed. 1993).  This 1,064 page to me contains a wealth of information concerning practice before the Court, ranging from rules to practical advice to useful phone numbers.  The book covers formal rules and procedures as well as prevailing customs and practices of a less formal nature.

In seeking discretionary review of a case through the filing of a petition for a writ of certiorari, it is critical to understand the criteria that the Court uses in deciding what cases it will accept.  For most advocates who have been living with a case for years and seek to have the Supreme Court right a perceived wrong, their instinct will be to immediately set about to convince the Court that the lower court was wrong.  But this may not be the most effective approach.

The primary role of the Supreme Court is not to correct errors in the lower courts.  Given the many thousands of cases that wend their way through the state and lower federal courts each year, it would be impossible for the Court to play a significant error-correcting role in our overall legal system even if it were inclined to do so.  Moreover, the Court is not so inclined. Rule 10 of the Supreme Court’s Rules sets forth the considerations governing review on certiorari. The kinds of cases which may warrant review include those where a federal court of appeals has entered a decision that conflicts with a ruling of another federal court of appeals on an important matter; a federal court of appeals has decided an important federal question in a way that conflicts with a decision by a state court of last resort; a state court of last resort has decided an important federal question in a way that conflicts with a decision of another state court of last resort or a federal court of appeals; or a state court of last resort or federal court of appeals has decided an important federal question that has not been but should be decided by the Supreme Court or in a way that conflicts with Supreme Court precedent.

Rule 10 also provides that review may be granted as an exercise of the Court’s supervisory powers over the lower federal courts where there has been an extreme departure from the accepted and usual course of judicial proceedings. The rule expressly states, however, that certiorari “is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.”

As evident from Rule 10, perhaps the most promising route to obtaining certiorari is to convince the Court that there is a conflict in the decisions of two or more federal courts of appeal or highest state courts on a significant issue of federal law. Note that the conflict must be among federal courts of appeal or state courts of last resort. It will not suffice to point to inconsistencies between state or federal trial court decisions.

Another effective approach is to try to persuade the Court that the decision is inconsistent with its own precedent. This can be particularly effective where the precedent relied on is very recent. In fact, it may even post-date the decision sought to be reviewed. In such cases, the Supreme Court may employ an approach involving less than full review. The Court may grant a certiorari, summarily vacate the lower court decision, and remand the case to the lower court for further consideration in light of the recent applicable Supreme Court case. After that process runs its course, the parties retain the option to go back to the Supreme Court and seek full review.

Being mindful of the Supreme Court’s criteria for granting certiorari should result in a petition for review placing primary focus on why the case satisfies the Court’s criteria, as opposed to why the decision below was wrong. That is not to say, however, that the reasons for claiming error should be wholly ignored. It certainly adds to the potential persuasiveness of a petition that, in granting review, the Court may not only resolve an important legal issue but also correct an erroneous decision.

Counsel seeking review should take great care in framing the issues presented for review. Indeed, there probably is no more important aspect of a certiorari petition. Many Justices do not look beyond the questions presented for review, which must be set forth on the first page of the petition. How the issues are stated is counsel’s first and best opportunity to grab the Court’s attention and persuade it that the case merits review.

For counsel interested in defeating a petition for review, the best approach often is to pursue the converse of what is suggested above. A brief in opposition to a petition for certiorari should endeavor to persuade the Court that the criteria for review are not satisfied, e.g., there is no true conflict in the lower state or federal courts or the issue is not one of particular importance.

A party opposing review is not required to accept a petitioner’s formulation of the questions presented. Rather, an alternative statement may be set forth. In re-framing the issues, counsel may endeavor to construct them in a manner that suggests that they are not worthy of Supreme Court review. Also, a case may involve factual or procedural complexities or peculiarities that make it a poor candidate for a precedent-setting Supreme Court case.  If so, this should be pointed out.

A few other points may be useful to petitioning counsel. First, make sure that all petitions and other materials filed with the Supreme Court are of first-rate quality, both in substance and appearance. One of the things the Court considers in deciding whether to grant review is whether it can anticipate good advocacy if it takes the case.

Also, petitioning counsel should be aware that they have the opportunity to file a reply brief after an opposition has been filed. However, the time frame for doing so may be narrow. For a reply brief to be read and have potential impact, it must be filed reasonably in advance of the Court’s conference at which the petition will be taken up. Information as to when a petition is likely to be considered can be gleaned by telephoning the Clerk’s office.

Finally, since the Supreme Court focuses on cases which have significance extending beyond the immediate parties, there may be organizations of substantial stature sufficiently interested in the outcome of a case that they may be willing to file an amicus curiae brief in support of a petition for review. Such briefs sometimes can be helpful.

Try these pointers, and you soon may find yourself winging your way to Washington for an exhilarating trip to the Supreme Court. Or, if you are opposing a certiorari petition, you may be able to avoid such a trip.