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April 28, 2014

You mostly can’t ‘take it all the way to the Supreme Court’

By

“I’ll take it all the way to the Supreme Court.” Anyone may say it, but when it comes to getting the Supreme Court to review a case, it’s far easier said than done.

The Supreme Court hears only a small number of cases each term, so the odds of getting your case before these nine justices are long, indeed. But there are good reasons why the Court declines to hear most cases — good reasons that range from the merits of a given case to procedural matters.

After getting an unfavorable decision at a lower court, the losing party may appeal to (technically, file a petition for a writ of certiorari with) the Supreme Court. Join the crowd. The Court receives nearly 10,000 petitions each term, and except for a few very narrow circumstances, it is entirely within the discretion of the Court to determine whether or not it will review a case. The Court grants certiorari in roughly one percent of cases. As a general matter, the justices look for cases that involve significant federal questions.

With rare exceptions, the Court is slow to take on major legal issues. Instead, it waits for issues to percolate in the lower courts. Some features increase a case’s “cert. worthiness,” such as when a lower court holds a federal law unconstitutional; a federal law creates an issue that is likely to repeat itself; a “circuit split” emerges among the federal appellate or state courts; or a lower court decision conflicts with the Supreme Court’s previous cases.

Having friends can help as well. The Court allows interested individuals and organizations to file amicus curiae (or “friend of the Court“) briefs to support or oppose cert. petitions. These briefs typically supplement the party’s arguments or provide a unique viewpoint that the justices may find persuasive.

But the best friend of all is the U.S. Solicitor General. In cases where the federal government is not one of the litigants, the Solicitor General may file an amicus brief to signal that the executive branch views the case as especially important. On occasion, the justices will even ask the Solicitor General to weigh in on whether the Court should grant review. The Court takes these recommendations very seriously. Indeed, the Solicitor General has been referred to as the “tenth justice.”

When the Court does grant certiorari, the parties file briefs on the merits of the case. Typically, the Court will also hear oral arguments before issuing a decision in the case. On occasion, the Court will grant cert. and then summarily affirm or reverse a lower court decision without oral argument. Even less frequently, the Court may “dismiss as improvidently granted” (“dig”) a petition. This happens if the justices discover that they were premature in taking a case — that is, typically when certain procedural requirements have not been met.

For most litigants, however, the journey ends with a brief order denying cert. Throughout its term, the Court routinely releases order lists ranging from a few pages to nearly 100 pages of denials.

While a denial of cert. means that the lower court’s decision stands, it does not mean that the Supreme Court necessarily agrees with the lower court ruling. A denial has no precedential value. Here, silence is not affirmation. Indeed, some justices may disagree with a lower court ruling, but nevertheless decide for other reasons that a particular case is not suitable. The Court declines to review many cases for procedural reasons, such as if the party bringing the case lacks standing or the Court lacks jurisdiction to consider the case. Procedural hurdles may seem arcane, but they are necessary.

Getting a case before the Supreme Court may seem like a long shot and it is. But most legal disputes are “garden variety,” and need not be decided by the highest court in the land.

 - Elizabeth Slattery is senior legal policy analyst in the The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

Originally appeared in The Washington Times

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