Every year, Americans read about cases going to the Supreme Court and the potential legal and constitutional implications of those cases. The Supreme Court is unique because the Supreme Court Justices choose which cases the Court hears. But unless you’re a lawyer or a Supreme Court junkie, the process for how they choose those cases may be a mystery.
If you want to learn how a case makes it to the Supreme Court, a good place to start is with a legal device called a writ of certiorari.
A writ of certiorari (pronounced ser-SHE-or-ar-i) is the legal document the Supreme Court issues when it agrees to hear a case. Many attorneys and others who pay close attention to the Supreme Court refer to a writ of certiorari as simply a “cert petition.”
Today, almost every Supreme Court case is granted by a writ of certiorari, but that hasn’t always been how the Court operates. What is a writ of certiorari, how do cases make their way to the Supreme Court, and how has that process changed over the years?
Writs of certiorari date back to medieval England. A writ of certiorari is a type of legal appeal (a challenge to a case’s decision), but it’s an appeal on only a specific issue or set of issues in a case.
A Supreme Court writ of certiorari is the official way the Court declares it will hear a case and what specific legal issues of the case the Court will consider. When a case has gone through all the steps necessary to reach the Supreme Court (more on that process below), the petitioner (the party asking the Court to take a case) files a petition for a writ of certiorari. This petition contains the case’s basic facts, but more importantly, the petition gives the legal arguments for the Court taking the case and the specific legal and constitutional questions the petitioner wants the Court to rule on. When the Court grants a writ of certiorari, it states that the petition is granted and names the specific questions the Court will consider while hearing the case.
A good example of this process is PLF’s case Knick v. Township of Scott, Pennsylvania. When PLF filed a petition for writ of certiorari for Knick, PLF was asking the Court to reconsider the precedent set in Williamson County. Williamson County prevented Americans with property rights cases from arguing their cases in federal court unless they went through the state court system first. When the Supreme Court granted writ of certiorari (or “Cert”), it agreed to hear the case and consider the question that PLF was asking the Court (the Court later ruled in favor of PLF’s client Rose Knick and struck down Williamson County).
The modern Supreme Court focuses on the constitutionality of federal and state laws, and the uniformity of how laws are interpreted and enforced across the nation. For example, if a state passes a law blatantly violating Americans’ freedom of speech, the Court can strike down the law as unconstitutional. Or, if a federal law is interpreted and enforced one way in some courts and in significantly different ways in other courts, the Supreme Court may take up the case to clarify what the law is supposed to mean on a consistent nationwide basis.
While there are some exceptions to the general process, the overwhelming majority of cases get to the Supreme Court by first going through federal trial level and appellate courts. These two levels are where the facts of each case are heard, where attorneys make their arguments, and where a jury or judge rules based on a case’s facts, the law, and existing legal precedent. Only after an appellate court has made a final ruling on a case can the plaintiff or defendant file a petition for writ of certiorari and ask the Supreme Court to hear the case.
For example, take the PLF case Cedar Point Nursery v. Hassid. PLF’s clients were California farmers subject to a California law forcing farmers to let union recruiter activists on their private property. They had lost at the trial and appellate levels, but our clients’ constitutional property rights were being violated and there was disagreement in different courts over how to interpret California’s law. PLF filed a Petition for Writ of Certiorari, and when the Court granted Cert for Cedar Point, it agreed to rule on the questions PLF was asking (the Court would later rule that California’s law was unconstitutional because it took private property without the payment of just compensation).
The Supreme Court receives thousands of petitions for writ of certiorari a year, but the Court hears only 50 to 100 cases annually. This makes the probability of getting to the Supreme Court extremely low; however, that probability is much higher for attorneys and law firms like PLF, with decades of experience arguing cases before the Supreme Court.
In the early days of America, there were no appellate courts, so the Supreme Court served as the nation’s single appellate court. During that time, the Court didn’t choose the cases it heard; instead, the Court was required to hear every case appealed to it as long as the appeal was submitted properly. Also, in addition to hearing significantly more cases, Supreme Court Justices were required to “ride circuit” and travel to different circuit courts around the country to preside over cases. All this meant that life as an early Supreme Court Justice was an exhausting (and even deadly) job.
After the Civil War, the number of cases brought before the courts—including the Supreme Court—exploded. America was now a larger country with far more laws to challenge. To give an idea of the jump in the cases: In 1860, the Supreme Court had 310 cases on its docket; in 1890, it had 1,816 and was three years behind on its case load. This growing problem led Congress to pass the Evarts Act of 1891, which created the appellate court system and dramatically cut down on the types of cases that the Supreme Court heard. Then the Judiciary Act of 1925 changed the way that cases made their way to the Supreme Court, reduced the mandatory cases the Court hears, and gave the Court more ability to decide which cases it ultimately hears. Finally in 1988, the Supreme Court Case Selections Act cut the number of mandatory cases that the Supreme Court has to take even more and created the system that the Court operates in today.
While not perfect, the Supreme Court of the United States is the legal body tasked with ensuring our laws and policies respect Americans’ constitutionally protected individual rights. There will probably always be pomp and circumstance surrounding the Court and its operations. But understanding how the Court operates through procedures like writs of certiorari allows Americans better to understand Supreme Court decisions and their true significance for individual rights.