When you are putting together a U.S. Supreme Court petition’s “appendix,” forget what you know about collections of documents going by the same name under lower federal court and state court appellate rules. Just read Supreme Court Rule 14.1(i). The rule’s limited categories of required documents reflect the high court’s unique role and the narrow purpose of a petition for certiorari, but also give license for pretty much anything a petitioner wants to include to persuade, or irritate, the Court.

Rule 14.1(i) lays out a specific order for described types of documents. Still, some vague wording makes it hard to know exactly what the Court wants in particular cases. And there is a catchall provision that encourages some attorneys to throw far too much into the appendix — sometimes at great expense. The next few blog posts will dive into the petition appendix rule and add some notes on Cockle’s experience in applying it.

Before getting to the particulars, let’s step back and look at the context.

A petition for a writ of certiorari asks the highest court to select your case for review from a huge stack of petitions battling yours for one of the limited slots on the docket. Rule 10 describes what the Court itself says it does or does not consider in sifting through petitions. Take its description of the Justices’ own interests seriously!

Only “rarely” does the Court care about “erroneous factual findings or the misapplication of a properly stated rule of law.” Rule 10. As described in an analysis of the cases which the Court accepts or denies, the “Justices have repeatedly claimed that the Court’s role is not to remedy incorrect legal conclusions of the lower courts.” R. Stephenson, Federal Circuit Case Selection at the Supreme Court: An Empirical Analysis, 102 Georgetown L.J. 271, 288 (2013).

Instead, the subparagraphs in Rule 10 labeled a, b, and c essentially narrow the Court’s “compelling reasons” for granting a writ to:

  • settling disputes among lower federal and state courts about what federal law is;
  • bringing lower state and federal appellate courts’ application of federal law into line with settled Supreme Court precedents;
  • correcting “far” departures by a federal court from “the accepted and usual course of judicial proceedings”; and
  • addressing important unsettled federal questions burbling up through the federal or state courts.

Just as your brief’s argument should focus on these factors, your appendix should do no more than advance that narrow argument, after satisfying the minimum requirements.

If you get in the door, and the Court sends a writ to the lower court, then you can refocus your merits-stage argument on errors in the lower courts and add more documents to the Joint Appendix to back your substantive points. But at the petition stage, anything beyond the required documents should be sparingly included to advance the threshold purpose of catching the Court’s attention.

Next: Required opinions.