If you’ve just lost your case in a federal circuit court of appeals or state court, you are likely weighing the pros and cons of appealing to the United States Supreme Court. In order to proceed judiciously, you need to decide if filing a cert. petition is right for you.
Who can petition for certiorari?
Any party to a civil or criminal case can file a petition for review. The party filing the petition is called the petitioner.
How many petitions are granted each year?
The Supreme Court typically grants certiorari in approximately four percent of paid – or booklet-format – cases each term. During the 2014 term for example, the Court granted 75 petitions. Because it receives about 9,000 petitions each term (the bulk of which are meritless in forma pauperis filings), the Court does not have the time or resources to review every instance of lower court error. So the Court’s review is discretionary.
How can I tell if my case is certworthy?
An understanding of factors the Court considers when granting certiorari can help you determine whether or not to file a petition.
You should file a cert. petition if you can raise legal issues that: (1) have national importance; (2) have divided federal courts of appeals; (3) have divided federal and state courts; and (4) have not been decided by the Supreme Court. See Rule 10; Gressman, E., et al., Supreme Court Practice, at 238-273 (9th ed. 2007).
Rule 10 advises that the Supreme Court considers the following factors in determining whether to grant certiorari:
(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;
(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
Retired Associate Justice John Paul Stevens noted that “