Ten years ago, Congress passed new legislation making almost all Supreme Court review discretionary rather than obligatory. Prior to this legislation some Justices complained that the Court was badly overworked, indeed too busy to do anything about being too busy. The Court, it was feared, could not adequately screen five thousand petitions for certiorari every year while shouldering the burden of writing opinions on the merits in some 150 cases. But in recent terms the number of opinions rendered by the Court has fallen almost in half. And through its reliance on an enlarged "certiorari pool" for screening cases, the Court has tightened up its own centralized mechanism for quickly disposing of almost seven thousand annual requests for review. This screening system is the Court’s Maginot Line, designed to repel legions of petitioners. Few people today suggest that the Court is overworked. Concern runs in the opposite direction: the Court is not deciding enough important cases.
In this period of contraction, even seasoned Court watchers hesitate to predict which cases will make the cut. The problem is particularly acute for private litigants. While the Court grants 70 percent to 90 percent of the federal government’s petitions, it grants only 3 percent of private paid petitions and only of 1 percent of in forma pauperis petitions. The Court’s explanations for grants of certiorari in published opinions are terse and largely uninformative ("We granted certiorari because of the importance of the question," or "Given disagreement among the lower courts on the question presented, we granted certiorari"). Despite rare dissents from a denial of certiorari shedding light on the Court’s internal deliberations, almost all denials of certiorari come without explanation. Adding to the difficulty is the erratic nature of the grants. Although lawyers believe that conflicts among the lower courts are the most significant ground for a grant of certiorari, the Court regularly turns down cases involving strong claims of widespread conflict. Despite repeated statements that the Court does not sit as a court of error, it occasionally takes cases for no apparent reason other than correction of an egregious error. And while public importance is well-known certiorari criterion, this standard is plainly in the eye of the beholder. The Court passes over very important controversies every term while continuing to hear some cases rather narrow in scope. Few would quarrel with the Chief Justice’s statement that "[w]hether or not to vote to grant certiorari strikes me as a rather subjective decision, made up in part of intuition and in part of legal judgment." William H. Rehnquist, The Supreme Court, How it Was, How It Is 265 (1987). As Justice John Harlan put it, "frequently the question whether a case is ‘certworthy’ is more a matter of ‘feel’ than of precisely ascertainable rules." "Manning the Dikes," 13 Rec. Ass’n of the Bar of City of New York 541, 549 (1958).
Yet much depends on counsel’s ability to make informed predictions about what will generate interest among at least four Justices. Absent guidance, litigants waste large amounts of resources (millions of dollars annually) on hopeless requests for Supreme Court review. Those who have a truly "certworthy" case must guess about how best to explain that their case is the needle in the haystack. And lawyers opposing certiorari lack information needed to effectively expose deficiencies in the petition.
This article describes the certiorari criteria used by the Court today in the most restrictive period known to a generation of lawyers. The practice recommendations made here derive from comments of individual Justices, former personnel in the Solicitor General’s office, and former Supreme Court clerks. Full citations to applicable rules and authorities appear in Stern, Gressman, Shapiro & Geller, Supreme Court Practice (1993). Practitioners also should consult a recent study by Harvard political scientist H.W. Perry, Jr., Deciding to Decide (1991), which reports detailed interviews with five Supreme Court Justices and 62 former clerks shedding new light on the Court’s internal screening process.
The Supreme Court’s main jurisdictional statutes, 28 U.S.C. 1254(1) and 1257, and Supreme Court Rule 10, describe in general terms the kinds of cases arising from federal courts of appeals and state courts of last resort that are potentially "certworthy." Section 1254(I) broadly extends certiorari jurisdiction to all cases, civil or criminal, in the federal courts of appeals. Rule 10 nonetheless removes any suggestion of liability by declaring that review is "not a matter of right, but of judicial discretion" to be exercised "only for compelling reasons." Although not controlling or fully measuring the Court’s discretion, Rule 10 refers by way of example to cases in which there is a "conflict with a decision of another federal court of appeals on the same important matter" or a "conflict" on an "important federal question" with a "decision by a state court of last resort." As amended in 1995, Rule 10 places emphasis not only on the existence of a "conflict" but a conflict over an important issue of federal law. Quite deliberately, the Rule makes no mention of conflicts over the meaning of state law that arise in diversity cases, intra-circuit conflicts with prior decisions of the same federal court of appeals, or conflicts with trial or intermediate state appellate rulings, none of which ordinarily warrants a grant of certiorari. While Rule 10 makes clear that conflict review lies at the heart of certiorari jurisdiction, it leaves discretion to reach exceptional situations by reciting that the Court retains authority to review federal cases where the court of appeals has "departed from the accepted and usual course of judicial proceedings," a rarely invoked basis for Supreme Court review.
Section 1257 empowers the Court to review "final judgments or decrees" rendered by the highest court of a State in which a decision can be had where the validity of a federal or state statute has been drawn into question on federal grounds, or where any right is "specially set up or claimed" under federal law. This statute, unlike Section 1254, places significant limitations on the Court’s certiorari jurisdiction. Review of state decisions encompasses only "final judgments," subject to a narrow list of exceptions. Supreme Court Practice at 92-111. And review extends only to questions of federal law raised in compliance with state procedural rules governing the preservation of issues for appeal. A disappointed litigant cannot raise a federal law issue for the first time in a petition for certiorari. Nor can a litigant argue federal law in the Supreme Court when the decision of the state court clearly rests on an independent and adequate state law ground. Id. at 140-161. Rule 10 further limits the domain of certworthiness in state appellate cases, by advising counsel that, as in federal appellate cases, the Court is principally concerned with "conflicts" over "important federal questions" with decisions rendered by state supreme courts or federal courts of appeals.
Rule 10 confirms that the Supreme Court may, in compelling circumstances, accept petitions from either a federal court of appeals or a state court of last resort when the court below has decided an "important issue of federal law" that "has not been, but should be, settled by this Court"—with or without a conflict—or "has decided an important federal law question in a way that conflicts with relevant decisions of this Court." But as amended in 1995, Rule 10 states that the Court will not ordinarily entertain a case where the asserted error "consists of the misapplication of properly stated rule of law." In other words, where the applicable rule of law is settled, the Court will not supervise its application to particularly facts and circumstances even if the application is arguably wrong. Nor, Rule 10 admonishes, will the Court grant certiorari to review "erroneous factual findings."
The Screening Process
Every week a cart rumbles down the halls of the Supreme Court building bearing its weekly burden of approximately 140 petitions for certiorari. Each case comes complete with a lengthy appendix setting out the decisions of the courts below, and many come with a brief in opposition and a reply. Most petitions are stuffed with citations to statutes, opinions, and transcripts. Some are accompanied by amicus briefs as well. To carefully review any such case would, of course, consume many hours, and reading cited authorities would consume many more. To screen these documents efficiently, eight of the nine Justices have formed a certiorari pool. A single clerk in the pool has front-line responsibility for screening each petition. This individual, ordinarily a recent law school graduate with a year’s experience as a clerk in one of the courts of appeals, produces a memorandum (referred to formerly as a "flimsy") that sets out certain required facts (including the identity of the judges below, the questions presented, a summary of the facts and holdings, and a summary of the arguments in favor of certiorari). The pool memorandum evaluates the case and concludes with a recommendation in favor of a grant or denial of certiorari. These documents, according to participants in the certiorari pool, vary in quality and detail depending upon the particular author, but most are extremely short (usually two to five pages). Significantly, they represent the largest commitment of time that the Court makes to the review of certiorari requests. Pool participants estimate that the amount of time committed to the preparation of a pool memorandum ranges from 15 minutes to one day (a rare circumstance).
The certiorari pool memorandum next proceeds to "markup" in the chambers of some of the Justices. That means that other clerks, stationed in the chambers of other Justices, quickly review the pool memorandum and endorse it: "I agree. Certiorari should be denied for the reasons stated." In the alternative, the second screening clerk may write a short supplemental memorandum, stating a different conclusion or citing additional reasons. When the case reaches a Supreme Court Justice, the review is, by everyone’s estimate, a fleeting one. Scholars estimated in past decades (when the flow of certiorari petitions was roughly half what it is today) that a Justice could devote at most ten minutes on average to each petition. Now the number has dropped to five minutes or less. Even those Justices (like Justice Brennan) who dispensed with law clerk screening altogether acknowledged that most cases could be screened out based on a review of the question presented alone. It should not be imagined that any Justice reads all of the certiorari papers personally, or goes beyond reviewing a handful of the most controversial candidates for review.
A small fraction of the petitions screened every week makes the "discuss list" compiled by the Chief Justice based upon his own review and suggestions from other Justices. During the Court’s Friday conference, which begins with a discussion of argued cases and later turns to certiorari cases and other business, the Justices consider grants of certiorari. Justices who have participated in this process (and who gave interviews to Professor Perry) make clear that the discussion of individual cases is remarkably brief. The Chief Justice succinctly summarizes the case and announces his vote. The other Justices, proceeding in order of seniority, announce their votes without extended debate. Deciding to Decide at 47-49. Four Justices must agree to a grant of certiorari. Five must agree to summarily reverse a decision without briefing and argument. Four Justices may call for the Solicitor General to file an amicus brief stating the views of the United States, and any one Justice can call for a response when the respondent waives the right to file. On some occasions the Justices relist a case for further study.
The inexorable growth of the certiorari pool to include all Justices except Justice Stevens has generated concern among commentators and former members of the Court. Does this system put too much responsibility in the hands of a single, inexperienced clerk? Should there be at least two independent evaluations? But despite reservations, the certiorari pool is a fact of life today. How can counsel hope to penetrate this "screen," which results in favorable disposition of fewer than one hundred out of seven thousand petitions every year? Participants in the process give only limited attention to any case and the least amount of time comes from the Justices themselves. Inexperienced law clerks do the lion’s share of screening. Counsel’s finely tuned prose will not have any impact unless the clerk is duly impressed. And no clerk worth his or her salt is easily impressed.
Deconstructing the Petition
Law clerks screen cases with a strong presumption: the petition at hand is uncertworthy. If a petition fails to meet traditional criteria for certworthiness the Court ordinarily rejects it out of hand. Even if it seemingly satisfies traditional criteria, that is only the beginning of the inquiry. At that point the screening clerk labors to find flaws and problems warranting a denial of certiorari. If the issue presented is truly important, of course, it will arise again through a more suitable vehicle, so nothing is lost by a denial. (Justices have been known to remark to clerks that it is never a mistake to deny a certworthy petition; it is only a mistake to grant a noncertworthy petition, which can embroil the Court in factual or procedural squabbles and lead to an embarrassing dismissal of the case after argument.) Only a handful of petitions survive this process of deconstruction. Here are the basic ground rules.
Year in and year out, counsel file petitions for certiorari in diversity cases or in state court cases that turn solely on state law. On very rare occasions the Court grants certiorari to supervise a federal appellate court’s application of state law on the theory that the lower court has fundamentally misperceived the requirements of the Erie doctrine. But this happens only once or twice in a decade. The Court never grants certiorari to review state court applications of state law, no matter how vehemently the petitioner contends that there is a "conflict." All too frequently, counsel discovers that a state law ruling is not "certworthy" and attempts to smuggle in a federal law issue at the rehearing stage or for the first time in a petition for certiorari. These tactics almost never succeed; the Court consistently rejects these cases as resting exclusively on state law. Screening clerks characterize cases of this variety as "frivolous."
"Fact-bound" cases also fall quickly by the wayside. This term of opprobrium applies to a variety of different cases. In some situations it means that the petitioner is trying to relitigate the facts or debate the sufficiency of the evidence, a function the Supreme Court eschews; in some situations it means that the case applies only to a few people and has little real-world importance; in other situations, it conveys the notion that the case is odd or unusual and that any ruling would have limited precedential importance. All of these characterizations are the kiss of death to a petition for certiorari.
It is never a mistake to deny a certworthy petition. It is only a mistake to grant a noncertworthy one.
Where the law is settled, and the petitioner wishes to debate the application of that law to particular facts and circumstances, the Court also routinely denies review, as stated in Rule 10. While this is not an ironclad screening criterion (witness the Court’s occasional grant of certiorari in Fourth Amendment cases to demonstrate the correct application of the law to recurring factual situations), it is, at a minimum, a significant negative factor.
By now, lawyers have been trained to claim in certiorari petitions that an unfavorable ruling "conflicts" with the law in other circuits or state courts of last resort. The Court does not accept these claims at face value. First, the conflict may not be a genuine one; the difference in opinion may be only a matter of dictum, or the cases may be factually distinguishable. Second, the conflict may be too old; a decision rendered decades ago that is out of harmony with modern cases elsewhere is always subject to reconsideration without Supreme Court intervention. Third, the conflict may be too new; the Court benefits from "percolation" among the circuits and ordinarily stays its hand until several circuits have addressed an issue. Fourth, the conflict may be too narrow; most circuits may follow a consistent line of analysis, suggesting that a hold-out ruling in another circuit is a "sport" that will eventually be harmonized. Fifth, the conflict may be "tolerable"; as the Supreme Court’s rules indicate, many conflicts are not important to the general public (for example, minor differences in federal court procedure) and many such conflicts linger for decades without Supreme Court resolution. Sixth, the conflict may be subject to ready resolution by another body (including Congress, an administrative agency, or the U.S. Sentencing Commission), making Supreme Court review unnecessary.
Even if a true conflict warranting Supreme Court review appears, the clerks and Justices look skeptically at the case to determine if it is the right to vehicle to resolve the issue. In many cases the certworthy issue lies buried in the midst of other issues, themselves fact-bound and unworthy of review. If the Court cannot reach the certworthy issue without cutting through this thicket, that strongly suggests the case is a poor vehicle. Likewise, if the question presented has been inadequately preserved, or inadequately discussed and explored in the opinions below, the particular case is not a good vehicle for Supreme Court review. By the same token, if the facts are snarled in confusion the Court will deny review. Such a case presents the danger of an unpleasant and costly surprise; once the true facts have been unraveled, it may appear that the "issue presented" is not really presented at all.
In determining whether a particular case is an appropriate vehicle, the clerks and Justices also consider what is in the pipeline. The respondent may cite other cases raising the same question that are better vehicles for resolution of the issue presented. The existence of similar cases pending elsewhere assures that the Court will have numerous opportunities to settle the disputed point of law and weighs against a grant at any particular moment—certainly at an early stage in the evolution of the law.
Claims of "importance," too, are capable of deconstruction when it appears that other remedies short of Supreme Court review are available. A simple change in business practices or governmental administration may make it unnecessary for the Court to grant review. A regulation can be amended to remove problems or ambiguities. And Congress may overhaul a statute that has received an unwarranted judicial interpretation. Especially where debatable policy considerations are at issue, the legislative fix may be not only sufficient but greatly superior.
Finally, some cases may appear to the Justices as "intractable." The petition may contain no reasonable solution to the problem raised in the litigation, or the Court may be uncertain that it can devise a remedy significantly different from (or better than) that devised by the court below. Cases of exceptional complexity which are not illuminated by thoughtful scholarship or focused analysis in conflicting opinions of the lower courts naturally fall into this category. So do sprawling cases with numerous parties and claims but no central, dispositive legal issue.
Any one of these objections suffices to defeat a petition for certiorari. Given the range of these potential objections, it is the rare petition that escapes rejection. In fact, a relentless application of the foregoing criteria would support the conclusion that "certworthy" cases are a null set with no viable examples.
The Needle in the Haystack
Since most certiorari petitions have one or more of these defects, how is that the Court finds 80 or 90 cases every term for review? The answer, explained in the Perry interviews, is that the clerks and Justices look for combinations of positive factors that outweigh the negatives. Deciding to Decide, p. 245. The Chief Justice has elaborated on the most important positive factors (referred to more cryptically in Supreme Court Rule 10) as follows: "One factor that plays a large part with every member of the Court is whether the case sought to be reviewed has been decided differently from a very similar case coming from another lower court." "Another important factor is the perception of one or more justices that the lower-court decision may well have been both an incorrect application of Supreme Court precedent or of general importance beyond its effect on these particular litigants." The Supreme Court, How It Was, How It Is at 265. Professor Perry’s interviews with the Justices and screening clerks shed further light on the weighing of these positive factors.
All agree that conflicts are the most fertile ground for a grant of certiorari. As noted previously, however, the clerks quickly ferret out false conflicts. A genuine conflict arises when it can be said with confidence that another court of appeals or state supreme court would reach an opposite result, based on a clear ruling in a very similar case. The most compelling evidence of a conflict is an overt expression of disagreement: "We reject the rule applied in the Fifth Circuit and accordingly reverse the defendant’s conviction." If a conflict is less direct, consisting of disagreement over general reasoning, different outcomes in differing circumstances, or divergent dicta, the conflict is not a genuine one. Nonetheless, "inconsistency," "confusion," or "conflict in principle" can influence a grant of certiorari. Some opinions remark that the Court granted certiorari to resolve a "conflict in principle" or "disagreement among the lower courts." Supreme Court Practice at 168, 170, 173. While commentators sometimes suggest that all sophisticated lawyers can readily agree on the existence of a conflict, this is not always the case. There is room to argue whether an inconsistent holding has been rendered in a case that is, in the Chief Justice’s words, "very similar," or whether the inconsistency is central or tangential to the court’s judgment. The greater the "similarity" and "centrality" the stronger the argument for certiorari.
In contrast to cases lacking certworthiness, a certworthy case presents a conflict that has percolated among several circuits, one over which the split is widespread and the difference is current. And the conflict relates to an important issue as to which inter-circuit disagreement is intolerable. Procedural differences may not, for example, be intolerable if they do not fundamentally affect the administration of justice. Slight differences in the phrasing of instructions to deadlocked juries, or minor differences in articulation of the standard of review of directed verdict motions, may not require Supreme Court attention. As stated in the Report of the Federal Courts Study Committee, 124-125 (1990), "the Court has long since given up granting certiorari in every case involving an inter-circuit conflict. . . . Conflicts over some procedural rules and laws affecting actors in only one circuit at a time may have a negligible effect."
The Study Committee cites the following examples as indicative of a truly "intolerable" inter-circuit split: the conflict "imposes economic costs or other harm to multi-circuit actors, such as firms engaged in maritime and interstate commerce": the conflict "encourages forum shopping among circuits": the conflict creates unfairness to litigants in different circuits, for example, by allowing federal benefits in one circuit that are denied elsewhere; or the conflict "encourages non-acquiescence" by federal administrative agencies, by forcing them to choose between the uniform administration of statutory schemes and obedience to the different holdings of courts in different regions. Id. at 125. Once again, what is "intolerable" lies in the eye of the beholder; there is ample room for creative argument.
A conflict with past Supreme Court rulings may be as important as an inter-circuit conflict in characterizing a case as "certworthy." In fact, a true conflict would invite summary reversal. But such a conflict rarely arises, for obvious reasons. Even in the absence of a genuine conflict, prior relevant Supreme Court decisions my bolster a petition if the lower Court has misperceived Supreme Court doctrine, if the Court’s own precedents are confused, or if the Court has specifically "left open" an issue for future resolution. Such references signal that the Court takes the issue seriously and intends to reach it. The case at hand may be an important chip in the mosaic which the Court is constructing in a field of law, which requires several related rulings over time.
Absent a conflict, extraordinary public importance usually is the only ticket for admission to the Supreme Court. Decisions invalidating acts of Congress or state statues on constitutional grounds are ordinarily sufficiently important to warrant Supreme Court review, whether or not a conflict exists. Sustaining a law over a strong constitutional objection (grounded in Supreme Court precedent) also may rise to the level of exceptional importance. Other earmarks of general public importance are the widespread impact of the decision below on large groups of people, on federal or state law enforcement efforts, or the administration of a statute or governmental program. If the issue is a frequently recurring one, which arises in many cases and consumes the resources of judges and litigants time and again, that too may call for Supreme Court resolution. Stated otherwise, widespread confusion in the lower courts sometimes warrants review of an important and frequently recurring question even absent a genuine conflict among the circuits. Eormous financial liabilities also may contribute to a finding of importance, particularly if the threat of liability extends to many entities and has general adverse economic consequences.
Scholars have debated the relevance of "error" in determining the certworthiness of a case. That debate has been settled in favor of the relevance of error, at least as an important supplemental consideration. As the Chief Justice notes, a perception of "incorrect application of Supreme Court; precedent," even if not rising to the level of a genuine conflict, is a material factor. The Supreme Court, How It Was, How It Is at 265,266. Disharmony with the plain language of federal statutes also demonstrates the kind of error considered seriously at the centiorari stage. The fact that the Court reverses in two out of three cases after granting certiorari confirms the general relevance of apparent error. This does not, of course, suggest that error, standing by itself, is a sufficient ground for certiorari. But it is one of the positive factors that contributes to a grant of review. See William Brennan, "Some Thoughts On The Supreme Court Workload," 66 Judicature 230, 231 (1983) ("I must admit frankly that we too often take cases that present no necessity for announcement of a new proposition of law but where we believe only that the court below has committed error"). Justices and law clerks interviewed by Professor Perry also referred to "egregious error." By this they meant one of two things: flagrant disregard for Supreme Court teaching in a field of law, or extraordinarily harsh and unreasonable results on the record—an appalling decision. Egregious error further tips the balance in favor of review. Deciding to Decide at 265-68.
A certworthy case is also a case that requires immediate decision. If the issue can await further percolation, delay is a virtue, no a vice. Many conflicts work themselves out over time, and percolation provides a firmer basis for a wise decision from the Supreme Court. Consideration by other courts and academic scholarship may better illuminate the issue, given sufficient time. But conflicts sometimes have an "emergency" aspect that triggers certiorari. If, for example, a multistate business does not know how to conduct its operations in view of conflicting judgments, or law, enforcement agencies are subject to inconsistent requirements, there is a real-world problem that cries out for prompt resolution. In all cases the practical need for immediate resolution must be weighed against the substantial advantages of a "wait and see" approach.
A certworthy case also must be a "good vehicle," the antithesis of the kind of case discussed previously in which the certworthy issue depends on resolution of messy factual disputes or other questions of lesser importance. If cited by counsel, the Court will compare the case to others "in the pipeline" to make that judgment. Resolution of the certworthy issue also must affect the outcome of the particular case. The quality and clarity of the opinion below, preferably joined with a dissenting opinion or a reasoned dissent from denial of rehearing, help to make a case a good vehicle for Supreme Court review.
Interviews with Justices and former law clerks also confirm the relevance of a number of general "signals" regarding certworthiness. The makeup of the panel is telling, as reflected in the requirement that the pool memorandum list the judges at all stages and the authors of the opinions below. A majority opinion written by a respected judge is more likely to accurately evaluate the facts and law, and a dissent from a distinguished judge helps to explore grounds for reasonable disagreement. Amicus briefs also signal general public importance. A distinguished amicus organization would not expend money and institutional capital in advocating Supreme Court review if the matter were not unusually important. Statistical research demonstrates a very significant correlation between amicus participation and grants of certiorari. Deciding to Decide at 137-38. Towering over other amici is the Solicitor General, whose certiorari recommendations are followed roughly 70 percent of the time. Amicus support from state government officials, although not as significant as support from the Solicitor General, also signals the Court that a case has general public importance. Likewise, the field of law in which a case arises constitutes a signal. The Court takes particular interest in different fields of law at different times—witness the Court’s romance with FELA and Jones Act jury verdicts 30 years ago, with securities law issues 20 years ago, and with racial and gender issues today. A case arising in a "hot" legal field commands more attention in the certiorari review process.
A final signal mentioned in interviews is the quality of counsel. Given its wide choice of test cases, the Court prefers to grant review in cases involving experienced counsel who can brief and argue the issues in a sophisticated manner. Pool memoranda often refer to "good lawyering" or "poor lawyering" in their certworthiness evaluations, and they list the counsel named in the petition and brief in opposition.
Copyright © 1999 Mayer, Brown & Platt. This Mayer, Brown & Platt article provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.