While Supreme Court experts offer nuanced distinctions on how to construct the argument section in a petition for writ of certiorari, most agree that accounting for the difference in purpose between a cert. petition and a brief filed in the lower courts is essential.
The paramount difference between a petition and a lower court brief is that the Supreme Court’s certiorari review is discretionary. To be heard, you must convince the Court that your case is “certworthy.” A certworthy petition is generally thought to contain legal issues that have: (1) national importance; (2) divided federal courts of appeals; (3) divided federal and state courts; and (4) not been decided by the Supreme Court. See Sup. Ct. R. 10.
The Court normally reviews only certworthy issues for pragmatic reasons – it receives more than 8,000 petitions a year and cannot review every instance of lower court error.
Although certworthy issues compose the bulk of the Court’s paid docket, cert. petitions are nevertheless granted in cases of lower court error (i.e., where the lower court erroneously applied or failed to apply Supreme Court precedent). In such cases, the error is usually obvious, and the Court will issue a per curiam decision or summary reversal. See H.W. Perry, Jr., Deciding to Decide, 265 (1991) (The Court grants cases of lower court error because “