Supreme Court practice has a language unto itself. One of the terms you will occasionally hear at the certiorari stage is that a petition has “vehicle problems.”

Well, what does that mean? And what the heck is a vehicle?

The Court doesn’t like to waste time. So when they consider granting a petition to decide a particular issue of law, they don’t want subsidiary issues getting in the way of deciding the merits. When a petition (the vehicle) has subsidiary issues (like standing or waiver) that could prevent the Court from ruling on the merits, often times the Court will simply pass on the case and wait for a vehicle without those problems—hence the “vehicle problems” term.

This is how the attorneys Timothy S. Bishop and Jeffrey W. Sarles at Mayer Brown describe it when offering arguments to raise in a Brief In Opposition to a petition:

A more compelling reason for the Court to deny review is that there is some barrier to reaching the merits at all. The issues raised in the petition may be beside the point because the lower court gave alternate grounds of decision that are sufficient to support its judgment. If so, point that out early in the brief in opposition. If the lower court did not pass on the merits of the question presented because petitioner did not raise (or failed to preserve) the issue, make that point early too. A crisp procedural defect of this sort is worth pages of argument defending the correctness of the decision below, and you must raise it in the brief in opposition or risk waiving it.

As a petitioner, you would be better off addressing the alternate grounds that lower courts used to decide the case below. And you would be well advised to do so in your petition. If you don’t, the respondent undoubtedly will.

Well, you might say, why would I want to raise these issues? Here is why. Amongst the Justices’ Clerks (who will write the memo recommending a grant or denial of your petition), there is an institutional bias towards not recommending a grant on the cert memos. The reason is simple. The worst thing a Clerk can do is to recommend a grant that the Court accepts, and then after merits briefs and oral arguments, the Court finds that they can’t reach the issue because the petitioner didn’t, for example, properly raise it below. The Court’s energy is wasted and the Clerk is to blame. So every Clerk writing every memo will look for vehicle problems. For this reason, you had better address them.

But don’t just take my word for it. The petition in Corboy v. Louie is a great example of this technique. (The petition is here). In this petition, the Question Presented involves an Equal Protection issue. The Hawaii Supreme Court, however, decided the case on standing grounds.

So how did the expert attorneys at Robbins Russell argue this petition given the subsidiary standing issue? They decided to argue the merits of the Equal Protection question first. They then explained why the issue is important. At the end, they argued that none of the subsidiary issues would prevent the Court from deciding the equal protection issue—thus, there are no vehicle problems.

This is how the experts handle vehicle problems. So the lesson is: if there are issues of standing, procedural default, waiver, or independent and adequate state grounds, then you had better address them. Otherwise, a Clerk will find them and recommend that the Court just wait for another case to raise a “clean” case.

Note: If you have been following these Matters of Practice posts, you will someday be able to find all of them (and more topics) in one place. I’m writing a short book about how to file U.S. Supreme Court briefs at the certiorari stage. I will use examples from expert Supreme Court litigators, and I will explain all of the little and big things (from what font to use to how to write a good Questions Presented). The book will be called “A Matter of Practice: A Guide for Infrequent Filers in the U.S. Supreme Court.”