certiorari

A writ from a higher court to a lower one requesting a transcript of the proceedings of a case for review.

[Middle English, from Latin certiorārī (volumus), (we wish) to be informed (words in the writ), passive of certiōrāre, to inform, apprise, from certior, comparative of certus, certain. See certain.]

The primary means by which a case comes before the United States Supreme Court. Litigants who seek review by the Supreme Court petition the Court for the writ, and if granted, the case comes before the Court for disposition. The party seeking review is known as the petitioner, and the opposing party is the respondent.

The Supreme Court, like any court, must have jurisdiction before it can decide a case. Its jurisdiction is determined by Article III of the Constitution and by congressional statute. Certiorari jurisdiction, given to the Court by Congress, accounts for the vast majority of cases. In addition to certiorari, there are four other ways a case can come before the court: by original jurisdiction, on appeal, by certification, or by an extraordinary writ. The last two are rarely used. Appeals and cases of original jurisdiction have mandatory review in the Supreme Court, whereas the decision to grant certiorari, or “cert,” is solely at the discretion of the justices. Article III of the Constitution identifies the cases that qualify for original jurisdiction, and Congress has established categories of cases that qualify as appeals. The terminology can be a bit confusing because the word appeal is commonly and generically used to mean taking a case to a higher court for review. Technically, however, when a case is “on appeal” before the U.S. Supreme Court, it means that Congress has mandated review for this type of case. Since 1988, however, most categories of appeals have been eliminated. Therefore, except for cases of original jurisdiction, which usually constitute about one or two cases a year, and a few other extraordinary types of cases, most cases today are before the Supreme Court on a writ of certiorari.

The Court has not always had broad discretion in case selection. Before 1925 most of its docket consisted of cases for which review was obligatory. The workload had grown to such an extent, however, that on 13 February 1925, an act known as the “Judges' Bill” was passed. The most ardent supporter of the legislation was Chief Justice William Howard Taft. The act greatly expanded the Court's certiorari jurisdiction, which meant that its docket was to become largely discretionary. By the 1970s, certiorari accounted for about 90 percent of the Court's workload. Appeals constituted about 10 percent of the Court's docket until the 1988 legislation effectively eliminated most categories of appeals (see Judicial Improvements and Access to Justice Act). Even prior to 1988, however, the Court often finessed its appellate jurisdiction by “dismissing” appeals by not giving them full review.

Of the approximately five thousand cases a year for which review by the Supreme Court is sought, fewer than 5 percent are granted cert. If a case is denied cert, the decision below stands, and with a few exceptions, there are no further avenues of review. As a matter of law, a denial of cert has no meaning other than that the particular case will not be reviewed. It does not mean that the Court believes that the case has been correctly decided in the court below, nor may lawyers cite a denial of cert as evidence of the Court's position on the issue. Some observers, however, argue that a denial of cert can be read to mean something more, which of course it may, although the Court continues to disavow such a position.

The justices have been intentionally vague as to what makes a case “certworthy.” Rule 10 of the “Rules of the Supreme Court of the United States” purports to offer criteria, but it is of little help.

A review on writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefor. The following, while neither controlling nor fully measuring the Court's discretion, indicate the character of reasons that will be considered.

With one exception, the criteria that follow the statement offer little guidance as to what the Court really looks for when selecting a case. In short, the rule is almost a tautology: cases are important enough to be reviewed by the justices when the justices think they are important. Or as Justice Frank Murphy put it, “Writs of certiorari are matters of grace” (Wade v. Mayo, 1948, p. 680). The one criterion in rule 10 that is helpful in determining whether or not a case will be deemed “certworthy” is when federal circuit courts of appeals are in conflict over an issue. Though a “circuit split” does increase the likelihood that a case will be reviewed, it does not guarantee review. It is not always obvious when circuit courts are in conflict. Moreover, the Court often prefers to wait for additional courts of appeals to weigh in on a matter before it decides to resolve it. Nevertheless, the justices do see resolving conflicts among the circuit courts as one of their primary responsibilities.

Deciding what to decide is one of the most important functions performed by the Supreme Court. Given the difficulty of access to the Court, understanding how and why one case is selected and another rejected is important both in determining how the Court works and how access is achieved. Agenda setting has both behavioral and normative implications. To the extent that there has been scholarly interest in agenda setting beyond jurisdictional and procedural questions, it has mostly been by political scientists. They have focused much of their research on trying to determine factors that increase the likelihood of review. Results have been mixed, although there seems to be credible evidence to suggest that the likelihood of review is enhanced if there is a genuine conflict among circuit courts of appeal; or, if the United States is the petitioning party in the case; or if an amicus brief is filed urging a grant. Likewise, it has been demonstrated that a justice's vote on certiorari is related to his or her later vote on the merits, that is, the decision to affirm or reverse the decision below. Despite these insights from research, it is still very difficult to predict grants of certiorari in individual cases.

Until recently, little was known about the certiorari decision process. Actually, there are nine separate processes because each justice handles cert differently, but these are primarily individual variations on two basic routines. In some chambers, the justice and law clerks do all of their own cert work. The clerk reads the petition and writes a memo to the justice. The clerk notes the important issues, analyzes the case, and recommends a grant or denial. Eight justices, however, are members of the cert pool. When petitions arrive at the Court, they are divided randomly among the justices in the pool. One clerk writes a memo for all pool chambers. Upon receipt of the pool memo, clerks will then “mark‐up” (annotate) the pool memo for their individual justices. Each justice reads the memo and makes a tentative decision on how to vote on cert.

Prior to the conference, the chief justice circulates a “discuss list.” This list contains all the cases thought worthy of discussion at conference. Any justice can add any case to this list. Cases that do not make the discuss list—about 70 percent—are automatically denied cert. In conference, most cases receive very little discussion. The chief justice announces the case and the justices simply vote, in order of seniority, to grant or deny the case. If any justice feels that a case merits discussion, the justices speak and vote in order of seniority. For some time, scholars thought votes were taken in reverse order, but even if this once was the case, it is not so now.

If four justices vote in favor, cert is granted. This “rule of four” is an informal rule of long standing developed and adhered to by the justices. Cert votes are not made public. Some justices have recorded cert votes and left them in their private papers, but usually it is impossible to know how the justices voted. From time to time, a justice will feel strongly enough about a case to note publicly a dissent from the denial of certiorari. This may be accompanied by an opinion outlining why the case should have been taken. Some justices, however, disapprove of any public airing of cert votes and refuse to write dissents from denials. Dissents from denial of cert are uncommon except that Justices William Brennan and Thurgood Marshall always noted that they would grant cert in cases involving the death penalty because they believed capital punishment is unconstitutional.

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See also Judicial Power and Jurisdiction; Workload

Bibliography

• Gregory A. Caldeira and John R. Wright, Organized Interests and Agenda Setting in the U.S. Supreme Court, American Political Science Review 82 (December 1988): 1109–1127.
• H. W. Perry, Jr., Agenda Setting and Case Selection, in American Courts: A Critical Assessment, edited by John B. Gates and Charles A. Johnson (1990), pp. 235–253.
• H. W. Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court (1991)

— H. W. Perry, Jr.

For more information on certiorari, visit Britannica.com.

The U.S. Supreme Court has the authority, given by Congress (according to Article 3, Section 2, of the Constitution), to issue a writ of certiorari, which is an order to a lower court to prepare the record of a case and submit it to the Supreme Court for review. The Latin term certiorari means “to be informed.” A party to a case seeking review by the Supreme Court submits a petition to the Court for a writ of certiorari. If at least four justices vote in favor of it, “cert.” is granted, and the case comes to the Court for its review and decision.

Each year approximately 5,000 petitions are sent to the Court seeking a writ of certiorari. Less than 5 percent are granted “cert.” If the writ of certiorari is denied, the decision of the lower court is sustained. However, a denial of “cert.” cannot be used as evidence of the Supreme Court's opinion on the issue in the case.

The rules of the Court provide general guidelines for accepting or rejecting appeals from lower courts. For example, the Court will likely accept a case for review if there appears to be an error in lower court proceedings, if the issue in the case involves an unsettled question of federal law, or if there are conflicting opinions on the case from the highest state court and a federal court of appeals.

According to Rule 10 of the Rules of the Supreme Court of the United States, “A review on writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefor.” Making decisions about which cases to review, and which ones to reject, is among the most important judgments the Court makes. These decisions go a long way toward setting the agenda of the Court and determining who will and will not have access to it. Although there are other means by which a case comes before the U.S. Supreme Court, the writ of certiorari is the primary means for bringing a case to the Court for its review and disposition.

See also Jurisdiction

[Latin, To be informed of.] At common law, an original writ or order issued by the Chancery or King's Bench, commanding officers of inferior courts to submit the record of a cause pending before them to give the party more certain and speedy justice.

A writ that a superior appellate court issues in its discretion to an inferior court, ordering it to produce a certified record of a particular case it has tried, in order to determine whether any irregularities or errors occurred that justify review of the case.

A device by which the Supreme Court of the United States exercises its discretion in selecting the cases it will review.

Certiorari is an extraordinary prerogative writ granted in cases that otherwise would not be entitled to review. A petition for certiorari is made to a superior appellate court, which may exercise its discretion in accepting a case for review, while an appeal of a case from a lower court to an intermediate appellate court, or from an intermediate appellate court to a superior appellate court, is regulated by statute. Appellate review of a case that is granted by the issuance of certiorari is sometimes called an appeal, although such review is at the discretion of the appellate court.

A party, the petitioner, files a petition for certiorari with the appellate court after a judgment has been rendered against him in the inferior court. The petition must specifically state why the relief sought is unavailable in any other court or through any other appellate process, along with information clearly identifying the case and the questions to be reviewed, the relevant provisions of law to be applied, a concise statement of facts relating to the issues, and any other materials required by statute. The rules of practice of the appellate court to which the petitioner has applied for relief govern the procedure to be observed. For example, a petition for statutory certiorari made to the Supreme Court of the United States must be prefaced by a motion for leave, or permission, to file such a petition. If a common-law writ is sought, however, the petitioner need only file a petition for certiorari.

After evaluating the petition, the appellate court will decide whether to grant or deny certiorari. Certiorari is issued, designated as "cert. granted," when the case presents an issue that is appropriate for resolution by the court and it is in the public interest to do so, such as when the issue has been decided differently by a variety of lower courts, thereby creating confusion and necessitating a uniform interpretation of the law. Certiorari is denied when the appellate court decides that the case does not present an appropriate matter for its consideration. In the practice of the Supreme Court, if a petition has been granted certiorari as a result of a mistake, such as where the petitioner misrepresents the case or the case has become moot, the Court will dismiss the petition as "having been improvidently granted," which has the same effect as an initial denial of the petition. Practically speaking, this rarely occurs.

Some states have abolished writs of certiorari under their rules of appellate practice.

Certiorari (pronounced /ˌsɜrʃ(i).əˈrɛ(ə)ri, -ˈrɛəraɪ, -ˈrɑri, ˌsɜrti.oʊˈrɑri/^[1]) is a legal term in Roman, English, and American law referring to a type of writ seeking judicial review. Certiorari ("to be more fully informed") is the present passive infinitive of Latin certiorare, ("to show, prove, or ascertain"). A writ of certiorari currently means an order by a higher court directing a lower court, tribunal, or public authority to send the record in a given case for review.

Contents 1 Roman law 2 Australia 3 United Kingdom 4 United States 4.1 Federal courts 4.2 State courts 4.3 Administrative law 4.4 Differences in post-trial actions 5 See also 6 References 7 Further reading

Roman law

This section requires expansion.

In Roman law, an action of certiorari was suggested in terms of reviewing a case—much as the term is applied today—although the term was also used in writing to indicate the need or duty to inform other parties of a court's ruling. It was a highly technical term appearing only in jurisprudential Latin, most frequently in the works of Ulpian.

The term "certiorari" is often found in Roman literature on law but applied in a philosophical rather than tangible manner when concerning the action of review of a case or aspects of a case. Essentially, it states that the case will be heard.

Australia

Certiorari is available as an incidental remedy to the remedies of mandamus, prohibition, or injunction in the High Court of Australia - due to the effect of s75(v) of the Australian Constitution.^{[citation needed]}

United Kingdom

Historically, in England and Wales, certiorari was issued to bring the record of an inferior court into the King's Bench for review or to remove indictments for trial in that court. It evolves now as a general remedy to bring decisions of an inferior court or tribunal or public authority before the superior court for review so that the court can determine whether to quash such decisions.^{[citation needed]}

United States

Federal courts

In the United States, certiorari is most often seen as the writ that the Supreme Court of the United States issues to a lower court to review the lower court's judgment for legal error and review where no appeal is available as a matter of right. Before the Evarts Act,^[2] the cases that could reach the Supreme Court were heard as a matter of right, meaning that the Court was required to issue a decision in each of those cases.^[3] As the United States expanded in the nineteenth century, the federal judicial system became increasingly strained, with the Supreme Court having a backlog of years.^[4] The Act solved these problems by transferring most of the court's direct appeals to the newly created Circuit Courts of Appeals, whose decisions in those cases would normally be final.^[5] The Supreme Court did not completely give up its judiciary authority, however, because it gained the ability to review the decisions of the courts of appeals at its discretion through writ of certiorari.^[6]

Since the Judiciary Act of 1925, most cases cannot be appealed to the U.S. Supreme Court as a matter of right. A party who wants the Supreme Court to review a decision of a federal or state court files a "petition for writ of certiorari" in the Supreme Court. If the Court grants the petition, the case is scheduled for the filing of briefs and for oral argument.

A minimum of four of the nine Justices are required to grant a writ of certiorari, referred to as the "rule of four." The court denies the vast majority of petitions and thus leaves the decision of the lower court to stand without review; it takes roughly 80 to 150 cases each term. In the most recently-concluded term, for example, 8,241 petitions were filed, with a grant rate of approximately 1.1%,^[7] Cases on the paid certiorari docket are substantially more likely to be granted than those on the in forma pauperis docket.^[8] The Supreme Court is generally careful to choose only cases over which the Court has jurisdiction and which the Court considers sufficiently important, such as cases involving deep constitutional questions, to merit the use of its limited resources. See also Cert pool.

The granting of a writ does not necessarily mean that the Supreme Court disagrees with the decision of the lower court. Granting a writ of certiorari means merely that at least four of the Justices have determined that the circumstances described in the petition are sufficient to warrant review by the Court. Conversely, the Supreme Court's denial of a petition for a writ of certiorari is sometimes misunderstood to mean that the Supreme Court approves the decision of the lower court. Such a denial "imports no expression of opinion upon the merits of the case, as the bar has been told many times." Missouri v. Jenkins, 515 U.S. 70 (1995). In particular, a denial of a writ of certiorari means that no binding precedent is created by the denial itself, and that the lower court's decision is treated as mandatory authority only within the region of jurisdiction of that court.

Certiorari is sometimes informally referred to as cert, and cases warranting the Supreme Court's attention as certworthy. One situation where the Supreme Court sometimes grants a writ of certiorari is when the federal appeals courts in two (or more) federal judicial circuits have ruled different ways in similar situations, and the Supreme Court wants to resolve that "circuit split" about how the law is supposed to apply to that similar kind of situation. Issues of this type are often called "percolating issues."

Cert. granted sub nom is an abbreviation of the legal phrase "certiorari granted sub nomen", meaning "judicial review granted, under name", indicating that a petition for certiorari of a case has been granted, but that the court granting certiorari is hearing the case under a different name than the name under which the subordinate courts heard the case. For example, the case of District of Columbia v. Heller was known as Parker v. District of Columbia in the court below.

State courts

Some U.S. state court systems use the same terminology, but in others, writ of review, leave to appeal, or certification for appeal is used in place of writ of certiorari as the name for discretionary review of a lower court's judgment. A handful of states lack intermediate appellate courts; their supreme courts operate under a mandatory review regime, in which the supreme court must take all appeals in order to preserve the loser's traditional right to one appeal. However, mandatory review remains in place, in all states where the death penalty exists; in those states, a sentence of death is automatically appealed to the state's highest court.

Administrative law

In the administrative law context, the common-law writ of certiorari was historically used by lower courts in the U.S. for judicial review of decisions made by an administrative agency after an adversarial hearing. Some states have retained this use of the writ of certiorari in state courts, while others have replaced it with statutory procedures. In the federal courts, this use of certiorari has been abolished and replaced by a civil action under the Administrative Procedure Act in a United States district court or in some circumstances a petition for review in a United States court of appeals.

Differences in post-trial actions

Certiorari is an action taken after sentencing by a defendant who seeks relief for some perceived error in his criminal trial. There are a number of such post-trial actions, their differences being potentially confusing, thus bearing some explanation. Three of the most common are an appeal to which the defendant has as a right, a writ of certiorari and a writ of habeas corpus.

An appeal to which the defendant has a right cannot be abridged by the court which is, by designation of its jurisdiction, obligated to hear the appeal. In such an appeal, the appellant feels that some error has been made in his trial, necessitating an appeal. A matter of importance is the basis on which such an appeal might be filed: generally appeals as a matter of right may only address issues which were originally raised in trial (as evidenced by documentation in the official record). Any issue not raised in the original trial may not be considered on appeal and will be considered waived. A convenient test for whether a petition is likely to succeed on the grounds of error is confirming that (1) a mistake was indeed made (2) an objection to that mistake was presented by counsel and (3) that mistake negatively affected the defendant’s trial.

A writ of certiorari, otherwise know as simply as cert, is an order by a higher court directing a lower court to send record of a case for review, and is the next logical step in post-trial procedure. While states may have similar processes, a writ of cert is usually only issued, in the United States, by the Supreme Court, although some states retain this procedure. Unlike the aforementioned appeal, a writ of cert is not a matter of right. A writ of cert will have to be petitioned for, the higher court issuing such writs on limited bases according to constraints such as time. In another sense, a writ of cert is like an appeal in its constraints; it too may only seek relief on grounds raised in the original trial.

A writ of habeas corpus is the last opportunity for the defendant to find relief against his guilty conviction. Habeas corpus may be pursued if a defendant is unsatisfied with the outcome of his appeal and has been refused (or did not pursue) a writ of cert, at which point he may petition one of several courts for a writ of habeas corpus. Again, these are granted at the discretion of the court and require a petition. Like appeals or writs of cert, a writ of habeas corpus may overturn a defendant's guilty conviction by finding some error in the original trial. The major difference is that writs of habeas corpus may, and often, focus on issues that lay outside the original premises of the trial, i.e., issues that could not be raised by appeal or writs of cert. These often fall in two logical categories: (1) that the trial lawyer was ineffectual or incompetent or (2) that some constitutional right has been violated.

As one moves farther down the chain of post-trial actions, relief becomes progressively more unlikely. Knowing the differences between these actions and their intended use are an important tool in increasing one's chances for a favorable outcome. Use of a lawyer is therefore often considered advisable to aid one attempting to traverse the complex post-trial landscape.

See also

• subpoena ad testificandum
• subpoena duces tecum

References

This article includes a list of references, related reading or external links, but its sources remain unclear because it lacks inline citations. Please improve this article by introducing more precise citations where appropriate. (June 2009)

1. ^ http://dictionary.reference.com/browse/certiorari?r=66 http://www.askoxford.com/concise_oed/certiorari?view=uk
2. ^ Ch. 517, 26 Stat. 826 (1891).
3. ^ Russel R. Wheeler & Cynthia Harrison, Fed. Judicial Ctr., Creating the Federal Judicial System 17–18 (3d ed. 2005).
4. ^ Wheeler & Harrison, supra, at 12, 16.
5. ^ Evarts Act § 6., 26 Stat. at 828.
6. ^ § 6, 26 Stat. at 828.
7. ^ Caperton v. Massey Coal, 556 U.S. __, __ (2009) (Roberts, C.J., dissenting) (slip op. at 11). See also http://www.supremecourtus.gov/about/justicecaseload.pdf (10,000 cases in the mid-2000s); Melanie Wachtell & David Thompson, An Empirical Analysis of Supreme Court Certiorari Petition Procedures 16 Geo. Mason U. L. Rev. 237, 241 (2009) (7500 cases per term); Chief Justice William H. Rehnquist, Remarks at University of Guanajuato, Mexico, 9/27/01 (same).
8. ^ Thompson, David C.; Wachtell, Melanie F. (2009), "An Empirical Analysis of Supreme Court Certiorari Petition Procedures", George Mason University Law Review 16 (2): 237, 249, http://ssrn.com/abstract=1377522 

Further reading

• Linzer, Peter (1979). "The Meaning of Certiorari Denials". Columbia Law Review 79 (7): 1227–1305. doi:10.2307/1121841. 
• Lane, Charles. "It's Cert., to Be Sure. But How Do They Say It? Let's Count the Ways" The Washington Post, December 3, 2001 (archived).

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