How the Justices Decide Which Cases to Decide: An Explainer
The Supreme Court’s decision to review a case on the merits is one of the most consequential in the judicial process. This is because nearly every landmark ruling in the court’s history, from Tinker v. Des Moines Independent School District to Dobbs v. Jackson Women’s Health Organization, began with the filing of a petition for a writ of certiorari. However, having a petition granted is remarkably rare, with only 1.9% of the 3,856 petitions filed in the 2024 term being granted and argued on the merits.
The Certiorari Process
Certiorari, Latin for “to be more fully informed,” is the mechanism by which a higher court “calls up” or accepts the record of a lower court. A petition for a writ of certiorari, or “cert petition,” is a document by which a litigant who lost in another court asks the Supreme Court to review their case. Under the Supreme Court’s rules, a cert petition normally must be filed within 90 days (extendable up to 120) after the lower court issues its final judgment.
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A cert petition presents legal questions the petitioner believes call for the Supreme Court’s review and explains why the Court should hear the case. Most commonly, a successful cert petition will show differences between courts that have decided the same legal question. This is because the Supreme Court is not primarily a court of error correction, but rather a court that decides unresolved legal questions.
A Brief History of the Certiorari Process
The Supreme Court did not always have the discretion to choose which cases it would decide. Before 1925, many categories of cases carried an automatic right of appeal to the Supreme Court, meaning the justices did not have discretion over what cases they heard. However, with the passage of the Judiciary Act of 1925, the cert process became the main pathway for Supreme Court review of a case.
Today, the Supreme Court has nearly complete discretion over its docket, with two exceptions: cases that fall under the court’s original jurisdiction, and cases over which the court has mandatory appellate jurisdiction. In the latter cases, the justices must take some action on the appeal, whether that is to affirm the lower court’s decision without further briefing, reverse it, or hear oral argument and issue a decision on the merits.
The Cert Process in Action
The party seeking Supreme Court review is known as the petitioner, while the side that won below is known as the respondent. After the petitioner files its cert petition, the respondent has 30 days to file a brief arguing that the Supreme Court should not hear the case. The petitioner may also file a reply brief, which is due 14 days after that.
Outside individuals or groups with an interest in the issue at the center of the dispute can also file “friend of the court” (amicus) briefs at this stage, asking the justices to grant review. The whole bundle of certiorari-stage documents is then distributed to the justices’ chambers for review.
The Cert Pool and the Discuss List
Seven of the nine current justices participate in the “cert pool,” a labor-saving device in which a cert petition is first reviewed by a law clerk in one of the seven chambers. The clerk prepares a memo, known as a “pool memo,” which includes an initial recommendation as to whether the court should review the case. This memo is then circulated to all seven chambers and reviewed by the clerks in those chambers, and perhaps even by the justices.
Petitions that clear this threshold are added to the “discuss list.” If no justice asks to add a case to the discuss list, it is placed on the “dead list,” and certiorari is automatically denied without the justices having ever discussed or voted on it.
What Makes a Successful Petition?
A successful petition typically shows a circuit split, or a disagreement among the federal courts of appeals about how to resolve the same legal question. However, circuit splits are far from the only factor the justices take into account when considering whether to grant cert. Other factors that can increase the probability of a case being granted include when the case is relisted three or more times, when both parties are represented by seasoned Supreme Court practitioners, or when three or more cert-stage amicus briefs have been filed.
Tracking the Cert Process at SCOTUSblog
At SCOTUSblog, we track the cert process by categorizing and triaging petitions. We first narrow the docket by screening out petitions that are unlikely to receive consideration, such as petitions filed pro se or in forma pauperis. We then review the questions presented by each remaining petition, taking into account the importance and potential impact of the questions presented, whether the courts of appeals appear to be divided on that question, and whether there are “friend of the court” briefs filed in support of the petition.
The results of this filtering process are what you see in our Petitions We’re Watching section, a list of cases that, in our judgment, have at least a chance of progressing to the court’s oral argument docket. However, choosing which petitions will catch the court’s eye is more an art than a science, and can sometimes rest more on human psychology than any hard and fast rules.
- Certiorari is the mechanism by which a higher court “calls up” or accepts the record of a lower court.
- A cert petition normally must be filed within 90 days (extendable up to 120) after the lower court issues its final judgment.
- The Supreme Court has nearly complete discretion over its docket, with two exceptions: cases that fall under the court’s original jurisdiction, and cases over which the court has mandatory appellate jurisdiction.
- A successful petition typically shows a circuit split, or a disagreement among the federal courts of appeals about how to resolve the same legal question.
In conclusion, the certiorari process is a complex and nuanced mechanism by which the Supreme Court decides which cases to review on the merits. By understanding the cert process and what factors contribute to a successful petition, we can gain a deeper appreciation for the important role that the Supreme Court plays in shaping the law and resolving disputes in our society.