Professional Growth
Getting Heard at the High Court: What You Need to Know
May 23, 2023
Being granted a writ of certiorari from the U.S. Supreme Court is a long shot, yet the majority of cases heard by the Court involve the certiorari petition process. At the May 16 D.C. Bar CLE webinar “Certiorari Before the Supreme Court of the United States: A Strategic Guide,” George W. Hicks Jr. of Kirkland & Ellis LLP and Megan M. Wold of Cooper & Kirk PLLC shed light on the Court’s certiorari process and offered practical advice on what lawyers should consider for the most effective petition.
The Supreme Court purview for certiorari includes oversight of federal appeals courts and final judgments of states’ highest courts, including when those state courts decline to hear a case. A writ of certiorari authorizes the transfer of a case record and, inherently, jurisdiction to the U.S. Supreme Court.
Wold explained that a particularly strong basis for the Court to issue a writ of certiorari is to clear up national disparities in the law, as when different federal appeals courts have varying holdings on law. Another basis for granting certiorari is found in Rule 10(c) of the Rules of the Supreme Court of the United States regarding “an important question of federal law that has not been, but should be, settled by this Court.”
Certiorari petitions are not arguments for decisions on the merits. “The purpose of certiorari is to tee up a particular legal issue for the Supreme Court’s review,” Wold said, pointing out that the odds of being granted certiorari are low — about 80 cases out of approximately 7,000 to 8,000 petitions received each year.
The Supreme Court rules specify the substance and processing of certiorari petitions. For example, a petition must be filed within 90 days of the date of final judgment when appealing from a federal court of appeals or a state court of last resort. An extension is possible of up to 60 days, if the request is filed at least 10 days before the lapse of the 90-day period. However, Wold said, “asking for those extra 60 days is not favored,” as clearly enunciated by Supreme Court Rule 13.5. A single justice handles extension requests that come from the circuit court assigned to that justice.
Supreme Court Rule 14 states what needs to be specified in a certiorari petition, including a section on the questions presented for review articulating what the petition is about and what it is asking the Court to decide. “The question presented is probably the most important part of the cert petition,” Wold said. “It certainly is the part that is going to be read most closely. Any person inside of the Court who picks up your cert petition to see what it is about is going to turn first to the question presented.”
The rules do not mention the inclusion of an introduction in the petition, but it is a helpful guide for the reader. “By and large the vast majority of people who regularly practice in front of the Supreme Court would say it is necessary and good practice to have an introduction to your cert petition,” Wold said.
Once a petition is submitted, the respondent has the right to submit a response, which is often a “a brief in opposition” calling for the petition to be denied. The respondent also has a right to not respond, at which point a single justice can decide to order a response. Alternately, the petitioner can respond to the response with a short reply brief.
Another possibility is that one or more justices call for the views of the solicitor general regarding a petition. “This particularly happens if the petition involves an important question of federal law, but the United States is not a party to that particular case,” Hicks explained.
After internal review of the petition and all associated files, which may include amicus briefs, the justices meet about the “discuss list.” A vote of four or more justices grants certiorari, enabling the petitioner to have briefing and argument before the Court.
Conversely, the justices can deny a petition and — in rare cases with at least five votes — issue a summary decision. The justice can also relist a case for another conference, which is common, or hold a case for a later decision in connection with a pending case. For these held cases, Hicks explained, the Court can also issue a GVR — grant the writ of certiorari, vacate the decision below, and remand the case on the basis of some other decision, usually a recent one.
"The nine members of the Court really do their own work," Hicks said in an interview after the webinar. "They take seriously every petition that is filed, whether it is from a well-known practitioner who has 10 cases a year in the Court [or] a pro se prisoner [petitioner]. They treat everyone equally, everyone has a fair shot."
Wold, also interviewed afterward, said that “even for a lawyer who is not going to write a cert petition and never encounters it directly in their practice,” learning about certiorari “is an important part of understanding news stories of the U.S. Supreme Court and following along with what the Court is doing.”
“That usually is, at some point, relevant to all of us,” Wold added.
