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Key Facts
- Federal level: Most cases reach the Supreme Court through a petition for a writ of certiorari, not an automatic appeal.
- Federal level: Section 1254 authorizes certiorari review of cases in the federal courts of appeals.
- Federal level: Supreme Court Rule 10 describes certiorari as discretionary and identifies conflicts and important federal questions as considerations.
- Federal level: Four Justices must vote to grant certiorari.
- Federal level: A certiorari denial does not express a view on the merits.
A case usually gets to the Supreme Court only after another court has entered a reviewable judgment and a party asks the Justices to accept it. The principal request is a petition for a writ of certiorari.
Certiorari is discretionary. It is not another appeal as of right, and the Court rejects most petitions without deciding the underlying merits.
The usual route begins in a lower court
Under 28 U.S.C. § 1254, a party to a civil or criminal case in a federal court of appeals may petition the Supreme Court for certiorari before or after judgment.
A case from a state court follows a different statutory route. Section 1257 permits certiorari review of qualifying final judgments from the highest state court in which a decision could be had when a federal question specified by the statute is presented.
Section 1253 authorizes direct Supreme Court appeals from specified injunction orders in civil proceedings that federal law requires a three-judge district court to decide.
A certiorari petition asks for discretionary review
Supreme Court Rule 10 states that certiorari is not a matter of right and is granted only for compelling reasons. Its examples include conflicts among federal courts of appeals, conflicts involving state courts of last resort, and important federal questions that warrant Supreme Court resolution.
Rule 10 also states that a claim of factual error or misapplication of a correctly stated rule of law rarely warrants review. The Court’s role at this stage is therefore different from routine error correction.
Timing and petition content are governed by Court rules
Supreme Court Rule 13 generally requires a petition seeking review of a state court of last resort or a U.S. court of appeals to be filed within 90 days after entry of judgment. A timely rehearing petition changes the point from which the period runs under the rule.
Rule 14 specifies petition content, including the questions presented, parties, related proceedings, jurisdictional basis, constitutional and statutory provisions involved, statement of the case, and reasons for granting the writ.
These requirements show why a petition is not merely a request letter. It must establish the Court’s jurisdiction and explain why the case satisfies the Court’s discretionary review considerations.
Four votes are required
Official Supreme Court educational material describes the Rule of Four: four affirmative votes are required to grant a certiorari petition.
The Court’s guidance for prospective indigent petitioners explains that denial signifies only that review was not accepted; it does not state the Court’s view of the merits.
What happens after certiorari is granted
After a grant, the case proceeds to merits briefing and ordinarily oral argument. The Supreme Court reviews the prior record and the parties’ briefs; it does not use a jury or hear new witnesses.
The Justices later meet privately, vote, and issue one or more written opinions.
Case importance is legal, not personal
A dispute can be extremely important to its parties without presenting the kind of conflict or federal question that supports certiorari. Conversely, a case can attract review because its legal issue affects courts and litigants beyond the immediate dispute.
Individual Supreme Court cases illustrate those broader constitutional questions. One example appears in this discussion of juvenile life-without-parole limits.
