What Is a Writ of Certiorari? A Plain Guide

People often say they will take a case "all the way to the Supreme Court." In most situations, there is no automatic right to do that. The U.S. Supreme Court decides for itself which cases it will hear, and the main way it makes that choice is through a writ of certiorari.

Certiorari, often shortened to "cert," comes from a Latin term associated with being informed or made certain. Today it describes an order from a higher court telling a lower court to send up the record of a case for review.

How a Case Reaches the Supreme Court

Most cases begin in a federal district court or a state trial court. A losing party can usually appeal to an intermediate appellate court, such as a federal circuit court of appeals or a state appeals court. That first appeal is generally available as a matter of right.

After that, the next step is usually discretionary. A party who wants the Supreme Court to review the decision files a petition for a writ of certiorari. The petition explains what the lower court decided and why the justices should take the case.

Deadlines and Filing

Under the Court's rules, a cert petition is generally due within 90 days after the lower court's judgment or its denial of a rehearing request, although extensions can be granted in some circumstances. Petitions must follow detailed formatting rules, and people who cannot afford filing costs may ask to proceed in forma pauperis.

What the Justices Look For

The Supreme Court's Rule 10 says review on certiorari is not a matter of right but of judicial discretion, granted only for compelling reasons. The rule lists the kinds of situations the Court considers.

The best known is a conflict among lower courts, often called a circuit split, where federal appeals courts have reached different answers on the same legal question. The Court also looks at conflicts between state high courts and federal courts, and at important questions of federal law that the Court has not yet settled.

Error alone is usually not enough. Rule 10 notes that a petition is rarely granted when the only claim is that the lower court got the facts wrong or misapplied a properly stated rule of law.

The Rule of Four

The justices consider petitions at private conferences. By long tradition, the Court grants certiorari if at least four of the nine justices vote to hear the case. This practice is known as the rule of four.

Many justices take part in a shared arrangement, often called the cert pool, in which law clerks prepare memos summarizing petitions for the participating chambers. The justices then decide which petitions merit discussion.

Why So Few Cases Are Heard

The Court receives thousands of petitions each year and agrees to hear only a small share, typically fewer than 100 cases with full briefing and oral argument in recent terms. The large majority of petitions are denied.

That selectivity dates back to the Judiciary Act of 1925, which greatly expanded the Court's discretion over its own docket. Congress gave the Court power to focus on cases of broad legal importance rather than reviewing every appeal.

What a Denial Means

When the Court denies certiorari, the lower court's decision stands. A denial is not a ruling on the merits and does not mean the justices agree with the lower court. It simply means the Court has chosen not to review the case.

Sometimes the Court grants a petition, vacates the lower decision and remands the case for reconsideration in light of a recent ruling, an order often called a GVR. Individual justices may also write statements or dissents explaining their views on a denial.

The Bottom Line

The writ of certiorari is the gateway to the nation's highest court. Understanding it helps explain why so many disputes end in the appeals courts and why the cases the justices do accept tend to carry national significance.

Anyone considering a petition should speak with an attorney experienced in appellate practice, because the standards are demanding and the deadlines are strict. Court Magazine will continue to explain the legal processes that shape everyday life.