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 “

[t]ry as they might, the Justices cannot always resist acting as a court of last resort.”).

Cert. Stage Argument

The operation of the Court’s discretionary review process offers several clues as to how to successfully construct a cert. petition.  At the petition stage, the merits of your case are less important.  Indeed, Justice Stevens noted that “[t]he most helpful and persuasive petitions for certiorari to this Court usually present only one or two issues, and spend a considerable amount of time explaining why those questions of law have sweeping importance and have divided or confused other courts.”  O’Sullivan v. Boerckel, 526 U.S. 838, 858 (1999) (Stevens, J., dissenting).

Consequently, the argument portion of your cert. petition should emphasize certworthy factors such as a circuit conflict or the importance of the issue, before proceeding to the merits.  See Bishop, T., et al., Tips on Petitioning for and Opposing Certiorari in the U.S. Supreme Court, at page 6 (“It is crucial to temper the natural instinct to focus on defending or attacking the lower court’s decision on the merits.”).  Predominately arguing the merits of a question presented is perhaps the most frequent error committed by attorneys filing a cert. petition.

Merits Stage Argument

The merits can be argued if (and when) the petition is granted.  Once the traditional cert. factors have been rehashed, the argument section can be devoted to the reasons why the lower court erred. When laying out the merits of the case, counsel would do well to remember the admonishments of Rule 14 (“direct and concise argument”) and Rule 33 (“should be stated briefly”).

It has also been suggested that the reasons why the lower court was wrong should be “integrated” into the other sections of the argument at the merits stage.  See Supreme Court Practice, at 483.  For example, counsel often address how the lower court’s erroneous decision will affect a large number of litigants or lead to an increase in litigation, thereby creating an issue of national import.

Although a petition for writ of certiorari is a different animal from other appellate briefs, it is one that can be tamed with the use of these suggestions.  If you are considering filing a Supreme Court petition or have any questions about our process and pricing, give us a call at (800) 225-6964 or email [email protected].