Certiorari

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Certiorari is a writ (written order) of review issued by a higher court to a lower court. It is a means of obtaining review by an appellate court, typically a supreme court, of a lower court's decision. If an appellate court grants a writ of certiorari, it agrees to take and hear the appeal. (Often this is referred to merely as "granting cert.") An application for certiorari is known as a "petition for cert", which is shorthand for a "Petition for a Writ of Certiorari." See also Writ of Certiorari.

The votes of only four out of nine Justices, not a majority (five out of nine), are required by the U.S. Supreme Court to "grant cert." and thereby accept appeal of a case.

If the Court declines cert., then five votes rather than four are required to grant cert. on a motion for reconsideration of that denial. That rarely happens, but occurred in 2007 in the high-profile case of Boumediene v. Bush.

Contents

Statistics and Filing Information

Only about 1% of petitions for cert are granted.[1] The U.S. Supreme Court declines review in about 99% of the cases presented to it. Moreover, of the less than 100 petitions granted each year, many of them are on obscure legal issues having little importance. The Supreme Court prefers to take cases to resolve a conflict between the Circuit Courts, otherwise known as "circuit split" or "split in the circuits." This preference can result in taking a higher percentage of insignificant issues than one would expect, such as a variety of claims by prisoners or unusual assertions of a right to free speech.

Statistically, the presence of amicus curiae briefs in support of petitions is correlated to an increase percentage of success, although that may simply be because stronger petitions attract more amicus briefs.

Only members of the bar of the Supreme Court may file an amicus brief. Filing requirements include 40 copies and the proper color for the cover (cream-colored if in support of a petition for cert). The deadline is the same as the deadline for a response to the petition, but beware if the Respondent files an early waiver of his right to respond in order to accelerate that deadline. Amicus must also serve three (3) copies of the brief on each party.

Consent must be obtained from the parties in order to file an amicus brief or, in the absence of consent, a motion for leave from the Court to file the brief must be included and bound with the brief.

Petition Stage

Types of Cases Granted Certiorari

The U.S. Supreme Court grants certiorari to a higher percentage of cases that concern media entities or are likely to obtain more coverage by the media. For example, it granted certiorari in the much-publicized case of Eldred v. Ashcroft, even though the vote was 7-2 to affirm the decision by the D.C. Circuit and there was no split in the circuits. The Court also granted certiorari in Newsweek, Inc. v. Fla. Dep't of Revenue, even though it was on appeal from merely an intermediate state court. The Court grants certiorari in a relatively high percentage of cases concerning issues relating in some way to sex, such as Barnes v. Glen Theatre.

Contents of Appendix to the Petition

The Rules of the U.S. Supreme Court set forth the required order and contents for a petition:[2]

(i) the opinions, orders, findings of fact, and conclusions of law, whether written or orally given and transcribed, entered in conjunction with the judgment sought to be reviewed;
(ii) any other relevant opinions, orders, findings of fact, and conclusions of law entered in the case by courts or administrative agencies, and, if reference thereto is necessary to ascertain the grounds of the judgment, of those in companion cases (each document shall include the caption showing the name of the issuing court or agency, the title and number of the case, and the date of entry);
(iii) any order on rehearing, including the caption showing the name of the issuing court, the title and number of the case, and the date of entry;
(iv) the judgment sought to be reviewed if the date of its entry is different from the date of the opinion or order required in sub-subparagraph (i) of this subparagraph;
(v) material required by subparagraphs 1(f) or 1(g)(i); and
(vi) any other material the petitioner believes essential to understand the petition.

Amicus brief at the petition stage

The Supreme Court rules (effective Oct. 1, 2007) state that:[3]

2. (a) An amicus curiae brief submitted before the Court’s consideration of a petition for a writ of certiorari, motion for leave to file a bill of complaint, jurisdictional statement, or petition for an extraordinary writ may be filed if accompanied by the written consent of all parties, or if the Court grants leave to file under subparagraph 2(b) of this Rule. An amicus curiae brief in support of a petitioner or appellant shall be filed within 30 days after the case is placed on the docket or a response is called for by the Court, whichever is later, and that time will not be extended. An amicus curiae brief in support of a motion of a plaintiff for leave to file a bill of complaint in an original action shall be filed within 60 days after the case is placed on the docket, and that time will not be extended. An amicus curiae brief in support of a respondent, an appellee, or a defendant shall be submitted within the time allowed for filing a brief in opposition or a motion to dismiss or affirm. An amicus curiae shall ensure that the counsel of record for all parties receive notice of its intention to file an amicus curiae brief at least 10 days prior to the due date for the amicus curiae brief, unless the amicus curiae brief is filed earlier than 10 days before the due date. Only one signatory to any amicus curiae brief filed jointly by more than one amicus curiae must timely notify the parties of its intent to file that brief. The amicus curiae brief shall indicate that counsel of record received timely notice of the intent to file the brief under this Rule and shall specify whether consent was granted, and its cover shall identify the party supported.

Merits Stage

Deadline for filing a merits brief

Rule 25. Briefs on the Merits: Number of Copies and Time to File[4]

1. The petitioner or appellant shall file 40 copies of the brief on the merits within 45 days of the order granting the writ of certiorari, noting probable jurisdiction, or postponing consideration of jurisdiction. Any respondent or appellee who supports the petitioner or appellant shall meet the petitioner’s or appellant’s time schedule for filing documents.

2. The respondent or appellee shall file 40 copies of the brief on the merits within 30 days after the brief for the petitioner or appellant is filed.

3. The petitioner or appellant shall file 40 copies of the reply brief, if any, within 30 days after the brief for the respondent or appellee is filed, but any reply brief must actually be received by the Clerk not later than 2 p.m. one week before the date of oral argument. Any respondent or appellee supporting the petitioner or appellant may file a reply brief.

4. The time periods stated in paragraphs 1, 2, and 3 of this Rule may be extended as provided in Rule 30. An application to extend the time to file a brief on the merits is not favored. If a case is advanced for hearing, the time to file briefs on the merits may be abridged as circumstances require pursuant to an order of the Court on its own motion or that of a party.

5. A party wishing to present late authorities, newly enacted legislation, or other intervening matter that was not available in time to be included in a brief may file 40 copies of a supplemental brief, restricted to such new matter and otherwise presented in conformity with these Rules, up to the time the case is called for oral argument or by leave of the Court thereafter.

Deadline for filing an amicus curiae brief at the merits stage

Rule 37(2)(a)[5] An amicus curiae brief in a case before the Court for oral argument may be filed if accompanied by the written consent of all parties, or if the Court grants leave to file under subparagraph 3(b) of this Rule. The brief shall be submitted within 7 days after the brief for the party supported is filed, or if in support of neither party, within 7 days after the time allowed for filing the petitioner’s or appellant’s brief. An electronic version of every amicus curiae brief in a case before the Court for oral argument shall be transmitted to the Clerk of Court and to counsel for the parties at the time the brief is filed in accordance with guidelines established by the Clerk. The electronic transmission requirement is in addition to the requirement that booklet format briefs be timely filed. The amicus curiae brief shall specify whether consent was granted, and its cover shall identify the party supported or indicate whether it suggests affirmance or reversal. The Clerk will not file a reply brief for an amicus curiae, or a brief for an amicus curiae in support of, or in opposition to, a petition for rehearing.

See also

References

  1. Thompson, D. & Wachtell, M.: An Analysis of Supreme Court Petition Procedures, George Mason Law Review (2009) http://www.supremecourtus.gov/ctrules/2007rulesofthecourt.pdf
  2. http://www.supremecourtus.gov/ctrules/2007rulesofthecourt.pdf
  3. http://www.supremecourtus.gov/ctrules/2007rulesofthecourt.pdf (emphasis added)
  4. http://www.supremecourtus.gov/ctrules/2007rulesofthecourt.pdf
  5. http://www.supremecourtus.gov/ctrules/2007rulesofthecourt.pdf
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