From time to time we encounter an attorney who has been staffed with filing her firm’s first Supreme Court petition.  She pictures herself arguing in triumph before the Court – about to live out the first line of her obituary.  But there’s only one problem: she doesn’t know the first thing about petitioning for certiorari.

How can she get the record to the Court?  She assumes that either:

  • The Court needs the entire record below in order to fully grasp the presentation of her case; or that
  • She must reproduce the record in order to cite to and quote it as authority in the body of her petition.

Under today’s Rules, neither of these beliefs hold true.  The Court rarely has the time or the desire to examine the entire record in determining whether to grant certiorari.  And while the Clerk of the Court has the power to request the record for any reason, he typically does so only when directed by an individual Justice, which rarely occurs.  Here’s a brief history of the state of the record during Supreme Court proceedings.

Petition Stage

Until 1954, counsel was required to reproduce 10 copies of the complete record in printed form.  The Rules were relaxed in 1970 when attorneys were required to file only a single copy of the certified record alongside a petition.  This was true even though the Justices and their judicial clerks rarely – if ever – accessed any part of the record beyond the opinions on appeal:

The vast majority of the records … lay unread in the Supreme Court Clerk’s Office, filling needed storage space.  That Office’s usual contribution was to unpack them when they arrived, store them, and repack them for return to the lower court; many of the records, moreover, lay unclaimed in the filing room, with no instructions as to where they should be returned. Supreme Court Practice – 9th ed., Eugene Gressman, et al.

Revisions to the Rules in 1990 made it clear that counsel’s only responsibility with regards to the record was to not file a copy with the Supreme Court.

Paper-StackRule 12.7 now mandates that lower court clerks are not to honor a request to certify and transmit the record.  It also provides that “In any document filed with this Court, a party may cite or quote from the record, even if it has not been transmitted to this Court.”

If counsel believes that particular parts of the record are critical or highly relevant to the presentation of the case, those portions should be incorporated or quoted in the body of the petition.  Or, if those portions are somewhat lengthy, they may be added as an appendix to the petition.  Gressman at p. 417.

If counsel needs to draw the Court’s attention to part of the record, she should do so in her petition.

At the petition stage, the Court typically only requests the record when a Justice needs clarification for a pending order.  This comes into play about 20 times each Term when the court GVRs a case – i.e. when it grants cert., vacates the judgment below, and remands the case to the lower court without oral argument.

Merits Stage

After the Court grants cert., the Clerk will schedule the case for further briefing and oral argument.  At this point, he also requests the clerk of the court which has possession of the record to certify and transmit it.  The request will be made to the court of appeals to which the appeal below was taken in federal cases, or to the highest court that actually ruled on the merits of the case in state proceedings.

After the Supreme Court enters its final order in a case where the certified record has been received, the record is returned to the lower court clerk.  In cases disposed of by written opinion, the Clerk’s Office holds the record until just prior to the opinion’s publication in the United States Reports so that the Reporter of Decisions has ample time to double and triple check citations therein.