Certiorari: Legal Concept Explained

We can all agree that legal concepts like certiorari can be complex and confusing.

But having a solid understanding of certiorari can be invaluable for legal professionals, students, and anyone interested in the law.

In this post, you'll get a plain English overview of certiorari - from key definitions to real world examples and statistics. You'll come away with clarity on this integral aspect of the appeals process.

Introduction to Certiorari

Certiorari is a type of writ used to grant jurisdiction to appellate courts to review a lower court's judgment. It enables higher courts to selectively establish appellate jurisdiction over cases from lower courts.

Definition of Certiorari

Certiorari is a discretionary process that appellate courts use to decide which appeals they will consider from lower courts. It comes from the Latin word "to be more fully informed." Essentially, certiorari orders a lower court to deliver the case record so the higher court can review it to determine if it will hear the appeal.

Purpose of Certiorari

The purpose of certiorari is to enable appellate courts, like the U.S. Supreme Court, to maintain judicial efficiency by selecting only the cases that have significant public importance, where lower courts may have made egregious rulings, or that will resolve differences among the U.S. Courts of Appeals. Appellate courts use certiorari to manage their overcrowded dockets.

Key Features of Certiorari

Discretionary: Appellate courts have discretion to grant or deny certiorari. Most petitions get denied.
Rarely granted: Out of 7,000-8,000 petitions every year, the U.S. Supreme Court only agrees to hear about 150-160 cases.
Requires compelling reasons: The court looks for cases that significantly impact the public, lower court conflicts, or serious legal errors.

What is the concept of certiorari?

Certiorari refers to a type of writ seeking judicial review. It is most commonly associated with the writ used by the United States Supreme Court for granting review of a lower court's judgment.

The concept of certiorari involves a higher court reviewing the decision of a lower court, usually at the request of one of the parties involved. A writ of certiorari asks the higher court to exercise its discretionary jurisdiction to hear an appeal from the lower court.

For example, after losing a case in a federal court of appeals or state supreme court, the losing party may petition the U.S. Supreme Court to hear an appeal of that decision. If the Supreme Court grants certiorari (allows the appeal), the Court will then review the case and make the ultimate ruling.

The Supreme Court typically grants certiorari in cases that involve matters of major public importance, conflicts between federal courts of appeal or state supreme courts, or to resolve inconsistencies in the interpretation of federal law. Most petitions for certiorari are denied, underscoring its discretionary nature.

So in summary, certiorari provides a procedural mechanism for an appellate court to decide whether to hear an appeal from a lower court. It enables judicial review and helps ensure consistency in applying and interpreting the law.

What is an example of writ of certiorari?

One example where the Supreme Court granted a petition for writ of certiorari and heard a case is Filarsky v. Delia. In this case, the Supreme Court had to determine whether qualified immunity extends to a lawyer who is working for the government but is not a government employee.

Specifically, Filarsky was a private attorney who was retained by the City of Rialto, California to assist in an internal affairs investigation. During the course of this investigation, Filarsky participated in interviewing Delia, a City of Rialto firefighter. Delia later sued Filarsky, alleging that he violated Delia's constitutional rights during the interview.

Filarsky argued that he should have qualified immunity - the same immunity afforded to government employees who are sued in their individual capacities. The lower courts disagreed, noting that Filarsky was not actually employed by the City.

The Supreme Court granted certiorari to resolve this dispute over the scope of qualified immunity. In a unanimous opinion written by Justice Ginsburg, the Court held that qualified immunity does extend to private individuals like Filarsky who are working temporarily for the government. The Court reasoned that affording immunity in these situations helps ensure talented assistance even when the government lacks the needed expertise in-house.

So in summary, Filarsky v. Delia is an example of a case where the Supreme Court granted certiorari to determine the applicability of an important legal doctrine (qualified immunity) to a unique factual situation involving a lawyer working for the government on a temporary basis. The Court ultimately resolved the issue in favor of extending immunity to such individuals.

What is the action of certiorari?

Certiorari, as a mode of appeal, involves the review of the judgment, award or final order on the merits. The original action for certiorari may be directed against an interlocutory order of the court prior to appeal from the judgment or where there is no appeal or any other plain, speedy or adequate remedy.

In simple terms, a writ of certiorari is a process where a higher court reviews the decision of a lower court. The higher court has discretion on whether to grant certiorari to hear the case.

Some key points about certiorari:

It is not an appeal, but rather a request for the higher court to exercise its discretion to hear the case. The court can deny certiorari without explanation.
Certiorari may be filed before or after the lower court's final judgment, depending on the circumstances.
The party filing for certiorari is asking the higher court to review alleged errors or irregularities in the lower court's handling of the case.
In the United States, the Supreme Court grants certiorari to only a small fraction of petitions filed, focusing on cases with national significance or to resolve differences between Circuit courts.

So in summary, certiorari is the process by which a higher court reviews the decision of a lower court at its discretion through a petition filed by one of the parties involved in the case.

Is certiorari only for Supreme Court?

Certiorari is often associated with the U.S. Supreme Court since it is the court that most frequently uses writs of certiorari. However, certiorari can potentially be used by any higher or appellate court when reviewing decisions of a lower court.

The purpose of certiorari is for a higher court to determine if it should hear an appeal from a lower court's decision. Typically, certiorari is considered "discretionary review", meaning the higher court has discretion over which appeals it decides to hear. The higher court will often use certiorari to decide which cases raise important legal issues that deserve the court's attention.

So while the U.S. Supreme Court's use of certiorari to select which cases it hears receives a lot of attention, many state supreme courts and federal circuit courts of appeals also have certiorari procedures in place to decide which appeals they will review from lower state and federal courts. Certiorari allows appellate courts to focus their limited resources on the appeals that raise substantial legal questions affecting the public.

In summary, certiorari is a tool that enables discretionary review by appellate courts and is not one exclusively used by the U.S. Supreme Court. Any higher court may decide an appeal is important enough to deserve certiorari review. But the Supreme Court's role in setting national legal precedent makes its certiorari decisions more visible and impactful.

Understanding the Certiorari Process

The certiorari process allows parties to petition the Supreme Court to review a decision made by a lower court. Here is an overview of the key steps involved:

Determining Whether to File for Certiorari

Parties must weigh several factors when deciding whether to file a petition for certiorari, including:

Whether the case involves an important federal question of law
If there is a conflict between federal courts of appeals on the issue
If the lower court decision conflicts with Supreme Court precedent

Hiring experienced Supreme Court counsel to evaluate the chances of cert being granted is recommended.

Drafting and Filing the Petition for Certiorari

The cert petition should demonstrate that the case meets the criteria for certiorari. It must:

Clearly state the questions presented
Highlight splits between courts
Explain why the issues are important

The petition must be filed within 90 days of the lower court's judgment. Parties submit 40 copies to the Supreme Court clerk.

Supreme Court Initial Review of Certiorari Petitions

When petitions are filed, the Supreme Court clerk distributes them to the Justices' chambers. Law clerks review the petitions and prepare memoranda summarizing the facts and issues.

Granting or Denying the Writ of Certiorari

The Justices confer about the petitions. If four Justices vote to grant certiorari, the Court will hear the case. Most petitions are denied because the Court is highly selective about the cases it hears.

Factors in granting certiorari include:

Cases involving significant legal principles
Conflicts between lower courts
Important constitutional questions

If cert is denied, the lower court ruling stands.

The Role of Certiorari in Appellate Jurisdiction

Certiorari functions within the appellate jurisdiction of higher courts by allowing them to review judgments from lower courts. Through writs of certiorari, parties can petition appellate courts to hear appeals from lower court rulings.

Certiorari in the Appellate Court System

In the United States' appellate court system, certiorari provides a way for parties to request that appellate courts review decisions of lower courts. For example, one can file a petition for a writ of certiorari, asking the U.S. Supreme Court to review a ruling made by a U.S. Court of Appeals. The Supreme Court has discretion in choosing which cases to hear on certiorari. They typically look for cases that raise unsettled areas of law or conflicting rulings between courts.

Certiorari and Matters of Right

There are some instances where a party has a matter of right to file an appeal, meaning they are entitled to appellate review. However, in many cases, seeking appellate review is a discretionary matter that requires filing for certiorari. For example, appeals from U.S. District Courts to Courts of Appeals are generally a matter of right. But appealing a Court of Appeals ruling to the Supreme Court requires filing a petition for certiorari as the next step.

The Discretionary Nature of Certiorari Rulings

Higher courts have broad discretion in deciding whether to grant certiorari petitions. Unlike a matter of right appeal, they can deny certiorari without giving a reason. Factors appellate courts may consider include whether the case raises a new legal question, whether lower courts disagree on the issue, if the lower court ruling conflicts with Supreme Court precedent, or if there seems to be a miscarriage of justice. Due to the high volume of certiorari petitions filed, appellate courts only grant certiorari in a small fraction of cases.

Judgment Review and Certiorari

To have an appellate court review a lower court's judgment, parties who do not have an automatic matter of right appeal must file a petition for a writ of certiorari. In these petitions, they set forth the facts of the case, the legal issues involved, and reasons why the appellate court should accept the case for review. If certiorari is granted, the court will order records transferred from the lower court and schedule oral arguments before issuing a final binding judgment on the case.

Certiorari in the Supreme Court

Certiorari is an important legal concept that allows the Supreme Court to exercise discretionary jurisdiction over cases brought before it. This section examines certiorari specifically within the context of the Supreme Court.

The Supreme Court's Certiorari Docket

The Supreme Court has discretionary jurisdiction over most of the cases it hears. This means the Court gets to decide which cases it will review on appeal through the use of writs of certiorari. Parties in a case petition the Court to hear their appeal. If four Justices vote to grant certiorari, the Court will hear the case. Otherwise, the lower court's ruling stands. This "rule of four" allows the Court to focus on legal issues of nationwide importance.

Each year, over 7,000 petitions for certiorari are filed to the Supreme Court. With only about 80 cases granted review annually, the Court denies certiorari to the vast majority of petitions. The Court relies heavily on law clerks and internal memoranda to efficiently sort through the high volume of petitions.

Role of Justices and Clerks in Certiorari Petitions

Supreme Court Justices and their law clerks carefully review each petition for certiorari to determine if a case warrants further review. Law clerks prepare detailed memoranda summarizing the facts and issues of a case to help the Justices decide whether to grant or deny cert. These memoranda highlight aspects such as circuit splits, nationwide implications, and errors of law - all factors that may compel the Court to grant cert.

While law clerks take the lead on reviewing petitions, the Justices also closely examine many petitions, focusing on those deemed most meritorious. The Justices discuss these petitions at their weekly conferences to determine if four votes exist to grant certiorari. This collaboration between Justices and clerks is essential for identifying the small fraction of cases that will make up the Court's docket.

Memoranda and Certiorari Petition Analysis

The preparation of memoranda on certiorari petitions is a vital part of the Supreme Court's workflow. For each petition, a law clerk analyzes the facts and legal issues and writes a memorandum recommending whether cert should be granted or denied. These memoranda summarize the lower courts' reasoning, emphasize the national importance of an issue, and highlight any errors or need for clarification in the law.

Factors weighed heavily in determining if cert should be granted include if lower courts disagree on an issue (circuit split), if an important federal law or Constitutional question arises, and if a lower court egregiously departed from accepted precedent. The memorandum aims to arm a Justice with the information needed to vote on the petition at conference.

If four Justices vote to grant cert, additional research and memoranda are prepared ahead of oral arguments. Clerks play a crucial role throughout by distilling complex information on petitions into digestible memoranda for the Justices.

Congress and the Supreme Court: Certiorari Jurisdiction

The Supreme Court's certiorari jurisdiction has expanded over time through key legislation passed by Congress. The Judiciary Act of 1925 gave the Court nearly complete discretion over its docket by allowing it to largely deny appeals as a matter of right. Previously, the Court had to hear many routine appeals.

This expanded certiorari jurisdiction allowed the Court to focus on cases of nationwide legal importance. However, some appeals can still bypass certiorari and go directly to the Supreme Court, including some agency decisions and issues between states. Overall, Congress has shaped much of the Court's certiorari process through pivotal legislation that defined its discretionary jurisdiction.

Impacts of Certiorari

Certiorari can have significant implications on a case and the development of law. The granting of cert by the Supreme Court means the Justices have decided to hear a case, often due to a compelling legal issue or circuit split. This section analyzes certiorari's effects.

Effects on the Parties Involved in Certiorari

For the parties in a case where cert is granted, it means their legal battle will continue to the highest court. The stakes become higher, requiring extensive Supreme Court briefing and oral arguments. The Justices' eventual ruling then becomes binding. An adverse decision can have major consequences for parties, even overturning lower court victories. Granted cert also brings public attention.

Parties expend great effort trying to get or prevent cert. Getting the Supreme Court's attention can validate legal arguments but also presents risks of an unfavorable nationwide precedent.

Influence on Legal Precedent and Appellate Practice

Cert decisions directly shape legal precedent. By granting or denying cert petitions, the Justices set the agenda for precedents they will or won't set. Appellate lawyers follow cert closely to detect the issues the Court wants to tackle.

For areas of law where cert is granted, Supreme Court precedents often become the law of the land. Appellate practice also evolves as lawyers craft arguments aiming to persuade the Justices or circuit courts to align with Supreme Court reasoning.

Shaping of Public Policy through Certiorari

The Supreme Court's cert docket signals the key issues it thinks are critical or appropriate to rule on. Priority areas for its review inevitably shape public policy as Supreme Court decisions carry binding force over government and society on those issues.

Hot-button topics often reach the Justices through cert. Their rulings then dictate the law on politically-charged issues like abortion, affirmative action, gun rights etc.

Certiorari and Its Role in Constitutional Law

Certiorari intersects significantly with constitutional law. Many cases raising constitutional questions result in cert petitions to the Supreme Court. The Justices focus great attention on hearing cases that involve interpreting the Constitution.

Landmark Supreme Court rulings on constitutional matters — from privacy and due process to executive power and commerce — arose from granted cert petitions. The Court's constitutional decisions profoundly influence public policy by determining what government can or cannot do under the nation's founding charter. Certiorari's role here is vital.

Statistics and Notable Certiorari Cases

Certiorari allows the Supreme Court to exercise discretionary jurisdiction to review cases from lower courts. Key statistics and past landmark cases highlight the significance of this concept.

Certiorari by the Numbers: Statistics and Trends

The Supreme Court receives approximately 7,000-8,000 petitions for certiorari annually but only grants cert to hear oral arguments in about 80-100 cases per term. This amounts to a grant rate around 1-2% each year. The Court is very selective about the cases it chooses to review on cert. Factors like circuit splits, constitutional matters, and national importance weigh heavily in cert decisions.

Trends show cert petitions and grants increasing over time. For example, 6,761 cert petitions were filed in the 2010 term versus 8,240 petitions for the 2019 term - a 22% increase over the decade. Grants also rose from 82 in 2010 to 72 in 2019. As more cases enter the federal judicial system, certiorari serves as a critical filtering mechanism for the Supreme Court.

Landmark Certiorari Cases and Their Impact

Many monumental Supreme Court decisions originated as petitions for certiorari. These include:

Roe v. Wade (established abortion rights)
Miranda v. Arizona (ruled on rights of the accused)
Brown v. Board of Education (ended school segregation)
Obergefell v. Hodges (legalized same-sex marriage)

Without certiorari review, these seminal decisions may not have occurred. Even cases that were eventually decided against cert highlight its importance in airing key constitutional issues.

For example, in 2020 the Court denied cert in over 30 Second Amendment-related cases. This shows how cert shapes national debates around core legal questions.

Case Study: Maryland v. Baltimore Radio Show, Inc.

A key early case was Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912 (1950), which helped solidify certiorari's purpose. Here the Supreme Court denied Maryland's petition for writ of certiorari to the Court of Appeals of Maryland. This upheld the state court's ruling that a radio show satirizing local officials was protected free speech.

Legal scholars point to this case as affirming that the Supreme Court's primary role is not to correct all perceived errors by lower courts. Rather, certiorari focuses the Court on addressing issues of nationwide legal significance. This helped establish cert as serving a targeted, discretionary function.

Certiorari in Legal Scholarship: Harvard and Michigan Law Reviews

The Harvard Law Review and University of Michigan Law Review have published influential articles analyzing certiorari:

A 1952 Harvard Law Review piece by Judge Henry J. Friendly discussed how to improve cert by addressing issues like circuit splits. This spurred ongoing legal examination of certiorari.
A 2018 Michigan Law Review article by William Baude evaluated cert pool memos from clerks. He assessed influences on cert grants, providing transparency into the Court's discretionary review process.

Overall these scholarly works showcase how certiorari remains a complex, evolving area of legal research and commentary.

Conclusion

Certiorari is an important legal concept in the United States judicial system. It refers to the process by which a higher court reviews a decision of a lower court. Specifically, it is the means by which the Supreme Court of the United States chooses which cases to hear on appeal.

The Supreme Court receives thousands of petitions for certiorari every year but only chooses to hear around 100-150 cases. They exercise discretionary jurisdiction in deciding which cases are important enough to warrant review. The Court is not required to hear every petition filed.