This post is the first in a series of three discussing what Supreme Court experts suggest when preparing a successful petition for writ of certiorari. The first will address the “argument” section, the second the “questions presented” section and the third, tips and techniques to use when writing the cert petition.
While Supreme Court experts offer nuanced distinctions on how to construct the argument section of a petition for writ of certiorari, almost all agree that accounting for the difference in purpose between a cert petition and a brief filed in the lower courts is the sine qua non of effective petition advocacy.
The main difference between a petition for certiorari and briefs filed in the lower courts is that the Court’s certiorari review is discretionary. To be heard, you must convince the Court that your case is what’s called “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 Supreme Court Rule 10; Gressman, E., et al., Supreme Court Practice, at 238-273 (9th ed. 2007); Thompson, D. & Wachtell, M., An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Calls for Response and the Call for the Views of the Solicitor General, Geo. Mason L. Rev. Vol. 16:2, at 240 (2009) (which can be viewed here); Bishop, T. et al., Tips on Petitioning for Certiorari in the U.S. Supreme Court, at 29-31 (“Tips on Petitioning”) (which can be viewed here). The Court normally reviews only certworthy issues for pragmatic reasons; it receives between 6,000 and 8,000 petitions a year and cannot review every instance of lower court error. See C-Span Video Interview with Supreme Court Justices on the Topic of Granting Certiorari (which can be viewed here); Supreme Court Practice, at 276.
Although certworthy issues compose the bulk of the Court’s docket, cert petitions are nevertheless granted on cases of lower court error (i.e., where the lower court erroneously applied or failed to apply Supreme Court precedent). See, e.g., Corcoran v. Levenhagen, 558 U. S. ____ (2009); Youngblood v. West Virginia, 547 U.S. 867 (2006); see also, Supreme Court Practice, at 250; Shapiro, S., Certiorari Practice: The Supreme Court’s Shrinking Docket (which can be viewed here). In such cases, the error is usually obvious, and the Court will issue a per curiam decision or summary reversal. See, e.g., Dye v. Hofbauer, 546 U.S. 1 (2005); Spears v. United States, 555 U.S. __ (2009); Gonzales v. Thomas, 547 U.S. 183 (2006); see also, H.W. Perry, Jr., Deciding to Decide, 265 (1991) (The Court grants cases of lower court error because “
The operation of the Court’s discretionary review plays a large role in how a cert petition should be constructed in order to be successful. On the petition stage, the merits are much less important. See Tips on Petitioning, at 32; Baker, S., A Practical Guide to Certiorari, 33 Cath U. L. Rev. 611, 615 (1984). 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) (J., Stevens, dissenting). Consequently, the argument portion of a cert petition should emphasize certworthy factors such as a circuit conflict or the importance of the issue before proceeding to the merits. See Supreme Court Practice, at 477; Tips on Petitioning, at 32; Baker, S., supra, at 620-21; 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.”); Russell, K., Writing A Convincing Cert. Petition When There Is No Direct Circuit Split, (available on SCOTUS Blog). Predominately arguing the merits of a question presented is perhaps the most frequent error committed by attorneys filing a cert petition.
The merits, however, do have their place. Once the traditional cert factors have been argued, a section must be devoted for the reasons why the lower court erred. See Supreme Court Practice, at 277, 477; Tips for Petitioning, at 32; see also, Justice Rehnquist, Oral Advocacy: A Disappearing Art, 35 Mercer L. Rev. 1015, 1027 (1984) (noting that “the most common reason members of [the] Court vote to grant certiorari is that they doubt the correctness of the decision of the lower court.”). When arguing the merits, counsel would do well to remember the admonishment of Rule 14 (“direct and concise argument”) and Rule 33 (petition “should be stated briefly”). See Supreme Court Practice, at 482; Tips for Petitioning, at 32. For the merits can be argued if and when the petition is granted. It has also been suggested that the reasons why the lower court was wrong should be “integrated” into the other sections of the argument. See Supreme Court Practice, at 483. For example, counsel could argue 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 from the experts.