Understanding the Supreme Court's Certiorari Process
An analysis of how the Supreme Court selects cases for its docket.
1The Certiorari Selection Mechanism
The Supreme Court receives nearly 4,000 petitions for certiorari each term but grants review to only about 60 cases. Following a 100-year-old tradition known as the rule of four, the court agrees to hear a case if at least four of the nine justices vote in favor of granting the petition.
2Transparency and Secret Deliberation
While the initial petition and response are public, the voting process remains entirely secretive. The court does not disclose whether a decision to grant or deny review was unanimous or narrow. Denials of certiorari are rarely accompanied by explanations, leaving lawyers without clear guidance on why specific legal issues were rejected.
3The Role of Law Clerks
Seven justices participate in a cert pool where law clerks write memos to assist in reviewing petitions. Justices Samuel Alito and Neil Gorsuch handle petitions independently outside this pool. The specific criteria used by clerks to recommend granting or denying review remain largely hidden from public view and external accountability.
4Factors Influencing Case Selection
Rule 10 dictates the court seeks cases involving conflicting interpretations of federal law among lower courts. However, other factors like the reputation of counsel, the identity of the lower court judge, and the presence of en banc rulings also influence whether a petition is granted or denied by the justices.
5Decline in Total Caseload
The number of cases decided has dropped significantly from roughly 150 per term during the 1980s to about 60 today. While some observers point to the rise of the emergency shadow docket as a potential cause, the decline in cert grants began long before the recent increase in interim docket matters.
6Impact of the Shadow Docket
The emergency or shadow docket involves interim requests for relief decided without full briefing or oral arguments. The Justice Department has increasingly utilized this path to block lower court orders. Critics argue this process consumes significant judicial time, potentially reducing the capacity for the court to hear full merit-based cases.
7Theories on Declining Grants
Various theories attempt to explain the shrinking docket, including the possibility that Congress is passing fewer laws requiring judicial review. Others suggest there is less ideological disagreement between conservative justices and lower court judges, or that the justices simply prefer managing a smaller workload to maintain efficiency in their current operations.
8Bypassing Lower Appellate Courts
The court increasingly uses Rule 11 to grant review before an appeals court has issued a decision. This leapfrogging practice, once rare, is becoming more frequent for cases deemed of imperative public importance. A recent example includes the Trump v. Slaughter case regarding the independence of federal agency heads from presidential firing.
9Limited Public Accountability
The certiorari process remains an internal procedure largely shielded from public scrutiny. Because justices rarely discuss their selection methods, the legal community faces ongoing uncertainty regarding how petitions are handled. This lack of transparency ensures that questions about the court's case selection will persist throughout the current and future terms.
Original article: SCOTUSblog — Understanding the Supreme Court's Certiorari Process