Certiorari

Certiorari is a writ of review issued by a higher court to a lower court. It is a means of getting an appellate court to review a lower court's decision. If an appellate court grants a writ of certiorari, it agrees to take the appeal. (Sometimes this' is referred to 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.

Statistics and Filing Information

Only about 1% of petitions for cert are granted. 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.

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. Ashford, 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:

(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.