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 “