Granting Certiorari

Granting Certiorari:
How does the
Supreme Court decide which cases to decide?
Virtually all the cases decided by the United States Supreme Court have been granted a writ of
certiorari. Certiorari is a Latin word that means, “to be informed of.” Black's Law Dictionary
defines a writ of certiorari as: “An order by the appellate court to bring the case before them
when the court has discretion on whether or not to hear an appeal.” The Court does not have to
grant writs of certiorari, and most of the petitions requesting one are denied. Therefore, it is
helpful to consider the criteria used by the Supreme Court to determine whether or not a case is
certworthy. The Court’s Rule 10 briefly specifies some of the conditions under which the
Justices are likely to grant a writ of certiorari. These include resolving conflicting rulings
between federal appeals courts and/or state supreme courts on important federal questions, and
when a lower court “has decided an important question of federal law that has not been, but
should be, settled by” the Supreme Court. Other than Rule 10’s fairly vague statements that
apply to more cases than the Court could possibly address each year, the justices rarely explain
why petitions for certiorari are granted or denied. However, scholars, lawyers, and journalists
have investigated this topic, providing us with some insights.

Certiorari trends
Congress has passed two laws in recent decades that have made it easier for the Court to limit the
number of cases it chooses to hear, while making it more difficult for certain groups to file for a
writ of certiorari. Since 1995, Congress and the courts have prohibited prison inmates from
filing civil rights suits in federal court until they have first used up all possible avenues of appeal
within the prison system. In 1988, Congress gave the justices increased discretion over whether
or not to hear a case. Previously, statutes had required the Court to hear certain types of cases,
such as when a state law was deemed unconstitutional by a federal appeals court. As the justices
have taken advantage of their greater freedom not to hear cases, the Court’s docket has lightened.
In 1976, for instance, the Court heard 176 cases. By 1992 that number had decreased to 107.
Between 1995 and 2008, the Court issued full opinions in 72 to 83 cases per term. In the 2012
term, the Court issued full opinions in 73 cases.

Petitions from poor people

Among the cases the Court has selected to hear, very few are in forma pauperis, or cases filed by
people who cannot afford the filing fee. In recent terms, the Court has granted certiorari in an
average of less than one percent of pauper’s petitions compared to an average of 4 to 5% of paid
cases during the same terms.

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 Granting Certiorari

Fundamental aspects of the certiorari process

The following criteria have been adapted from: H.W. Perry. Deciding to Decide: Agenda Setting
in the United States Supreme Court. Cambridge, Massachusetts: Harvard Univ. Press, 1991.
1. There is a presumption against granting certiorari. There are three possible
reasons for this: (1) because there is so little time and there are so many cases, the Court
has to reject most of them; (2) the Court has plenty of time, but has relatively few worthy
cases from which to select; or (3) the Court is both strapped for time and many of the
cases are not worth hearing.
2. From a legal standpoint, virtually all of the cases that come before the Court
are fungible. That is, one may be used in place of another. This is often a bitter pill for
litigants to swallow, but is important to understand. The Court is typically not a place to
right wrongs in individual cases, but a place to clarify the law. So, what is important is
the legal issue the case raises, not the case itself.

Criteria for judging a case “uncertworthy”

1. Absurd Claims ("nut cases")
One example cited by Perry is a petition that claimed a man had been wronged because
his wife got out of bed and left him alone on Christmas Eve. Perry suggests that up to
10% of petitions for certiorari fall into this category.
2. Frivolous Issues
These fall into three categories: fact-specific cases (the resolution of which would add
nothing to legal doctrine), cases involving insufficient evidence (the claim is there wasn't
enough evidence to warrant the lower court's decision), and diversity cases (which
involve an interpretation of whether a federal court understands state law).
3. “Clear Denies”
These are cases the Court is simply unwilling to hear. The most frequently mentioned
example in Perry's research is ineffective assistance of counsel cases. Common parlance:
the Court just isn't going there. (NOTE: In recent years, the Court has accepted a few
ineffective assistance of counsel cases, and some of the justices have publicly expressed
concern about the quality of legal representation sometimes provided to indigent
defendants in capital cases. However, there is still great reluctance to second guess lower
court judges who are generally in the best position to determine whether counsel
provided ineffective assistance.)
4. Lack of Percolation
Cases that involve issues that are too new (that haven’t “percolated below”) are typically
not chosen. In general the Court will put off rendering a decision on an issue for as long
as possible. The rationale for delaying is that the Court can benefit from the analysis of

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others (including law professors who write articles in law review journals, and the
decisions and reasoning of judges in lower courts).
5. Cases with Bad Facts/Cases that Serve as a Bad Vehicle
Cases must present the issue clearly to be granted a writ of certiorari. They don't want
“bad” (messy or overly complicated) facts that muddy the legal issue being decided. For
example, Perry quotes a clerk who said “If they are going to rule on an insanity case, they
wouldn't want to use Charles Manson to make a decision on that issue” (p. 236).
6. Pipeline Considerations
The Court may avoid a case that is more complicated, even if it raises an important issue,
if it feels that a better, cleaner case is coming up through the judicial pipeline. Remember
that the justices view the cases as fungible (essentially interchangeable).
7. Intractable Issue
If the Court just doesn't know what to do about an issue and can't see a solution, they may
decide not to take on the case.

Criteria for judging a case “certworthy”

It takes a combination of these criteria for the Court to grant certiorari.
1. Circuit Conflict
This is the premier criterion used by the Court. The criterion is utilized when there is a
conflict among the lower federal (occasionally, the state) courts about an issue. The
conflict must be intolerable and current. The reputation of the lower courts that are in
conflict is a variable when applying this criterion. If the lower court is generally
considered of low quality then the Supreme Court will often not take the case, figuring
that the system will “cleanse itself” eventually with other judges.
8. Importance
There are a number of different ways that a case can be important enough to attract the
Supreme Court’s attention. Unusual or “one of a kind” cases like United States v. Nixon
(concerning the Watergate tapes) are somewhat more likely to be heard. Likewise, cases
that are important to the polity because of the political and societal impact of their
resolution, such as Brown v. Board of Education and Roe v. Wade, can attract the Court’s
attention. Finally, cases of substantial legal significance, such as a clarification of a rule
of evidence or an administrative procedure, can be important enough to merit the Court’s
involvement. Their importance stems from the confusion that has been created in the
legal system by different rules in different circuits.
As a general rule, two other factors affect the Court’s assessment of the importance of a
case: breadth (potential impact on many people) and the effect on the federal government.
If the Solicitor General of the United States urges the Court to grant certiorari because a
case is extremely important to the federal government, the Court pays close attention.

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 Granting Certiorari

Public pressure can work to encourage the Court to either grant or deny certiorari. The
Court took no cases involving gay rights until the late 1980s and waited more than twenty
years to take a case about the constitutionality of anti-miscegenation statutes (which
prohibited people of different races from inter-marrying).
9. Areas of Interest to the Justices
Some justices may have a particular "hobby horse" that can influence whether the Court
grants certiorari. A justice’s area of interest is often determined by personal history and
geographic origin. For example, justices from the West may favor granting certiorari in
water rights cases. Another example: a justice whose earlier law practice involved
representation of large corporations may believe the Court should accept more business
cases.
10. Egregious Legal Errors in Lower Courts
Flagrant abuses of justice or flagrant disregard for accepted legal doctrine will sometimes
lead the Court to grant certiorari. However, the justices do not see their overall role as
correcting errors of lower court judges.

A study of the 1982 term of the Court (by Caldiera and Wright) identified several variables
associated with the granting of certiorari. The top three variables, in order of importance, from
that study were:
1. The U.S. was the petitioner in the case;
3. There were more than three amicus briefs filed in support of certiorari; and
4. There was an actual (not just alleged by petitioner) conflict (either between
federal circuit courts, between state courts of last resort, between a federal court and a
state court, or between the court below and existing Supreme Court precedent).
This study adds to the Perry materials by suggesting that “importance may be measured by the
Court, in part at least, by the number of amicus briefs filed at the certiorari stage” (i.e., not just
at the merits stage, after cert has been granted).

References
 Perry, H.W. Deciding to Decide, Agenda Setting in the United States Supreme Court.
Cambridge, Massachusetts: Harvard Univ. Press, 1991.
 Caldiera and Wright, “Organized Interests and Agenda Setting in the U.S. Supreme
Court,” 82 American Political Science Review 1109, 1118 (1988) as reported in Brenner,
“Granting Certiorari by the United States Supreme Court: An Overview of Social
Science Studies,” 92 Law Library Journal 193, 198 (2000).

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 Deciding to Decide

Deciding to Decide Activity

The purpose of this activity is to help you become more familiar with H.W. Perry's criteria for
understanding why the Supreme Court decides to grant certiorari in a particular case.

Follow these steps

1. Read the short descriptions of each of the four cases. If you know whether or not
the Court has granted certiorari in any of the cases, please keep that to yourself so
that you don't shortcut your group's deliberation.
5. Discuss the strongest reasons for granting and not granting cert. Appoint a
timekeeper so you can get through all four cases. Allow about four minutes per case.
Focus your discussions on the meaning of the criteria as they apply to the specific cases.
Next, decide for each case whether or not the Supreme Court would grant certiorari.
There is no need for you to reach a consensus, but try to be clear about why (i.e., on
which criteria) you are disagreeing.
6. Select a spokesperson to represent your group's deliberations in the debriefing of
the activity.
7. Have fun!

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 Deciding to Decide

Case One: Drug Sweep in School Parking Lot

In the spring semester of 2002, Scott County School District instituted a policy that allowed
suspicion-less campus-wide drug sweeps with drug-sniffing dogs to be conducted at local
schools. At Austin High School, one such search turned up a handgun in a student’s car. The
student was charged with possession of a firearm on school property. At trial, the student argued
that the gun was found as a result of an illegal search. The court denied the motion and both the
court of appeals and Indiana Supreme Court affirmed that decision. The petitioner argues that the
Supreme Court needs to decide whether the Fourth Amendment allows suspicion-less drug
sweeps such as this at school. The respondent argues that lower courts agree that suspicion-less,
warrantless searches on school grounds are reasonable. No court has held that the Fourth
Amendment prohibits this type of drug sweep at school.

What is the best argument for granting cert?

What is the best argument for denying cert?

Will the Supreme Court grant certiorari in this case?

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 Deciding to Decide

Case Two: Video Voyeurism

A man in Mississippi was convicted of five counts of video voyeurism (which state law makes a
felony) and sentenced to fifteen years in prison plus five years of probation. State police had
observed him, on five separate occasions, videotaping a woman in her apartment from his car.
The woman was clothed and the door of her apartment was open. He repeatedly zoomed in on
her chest and crotch. The state statute for video voyeurism requires that the videotaping be
committed with lewd intent, without the victim’s permission, and in a location where a person
would intend to be in a state of undress and have a reasonable expectation of privacy.
On appeal through the Mississippi state courts, the man argued that the woman was not in a
location where a person would intend to be in a state of undress, since her door was open. The
state supreme court upheld his conviction, finding the fact that the woman was in a private
dwelling sufficiently met the “location” test of the statute. The man appealed the decision to the
U.S. Supreme Court, arguing that the courts below had misinterpreted the statute, and as such,
violated his right to due process as guaranteed by the Fourteenth Amendment.

What is the best argument for granting cert?

What is the best argument for denying cert?

Will the Supreme Court grant certiorari in this case?

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 Deciding to Decide

Case Three: Public Money for Computers in Religious Schools

A federal law allowed for the allocation of federal aid to provide computer equipment in public
and private schools for “secular, neutral and non-ideological” programs. In Jefferson Parrish,
Louisiana, about 30% of the funding allocated under this law went to private schools, many of
them religiously affiliated. Several public school parents sued, arguing that the law allocating
funds for educational materials to private schools violated the Establishment Clause of the First
Amendment. The Fifth Circuit ruled that this provision did violate the First Amendment because
it was an impermissible governmental aid to religious schools. The Ninth Circuit, in analyzing
the same issue in a different case, said that there was no violation of the First Amendment. A
recent Supreme Court decision already decided that it was ok for public school teachers to offer
remedial courses in parochial school classrooms. The Solicitor General of the U.S. filed a brief
asking the Court to grant certiorari.

What is the best argument for granting cert?

What is the best argument for denying cert?

Will the Supreme Court grant certiorari in this case?

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 Deciding to Decide

Case Four: School Dress Codes

Nicholas Boroff, a 17 year old public high school student in Ohio, was sent home from school on
consecutive days for wearing a t-shirt depicting shock rocker Marilyn Manson. Marilyn Manson
was often criticized as being satanic and presenting himself as the “anti-Christ.” The shirt was
not obscene, but school officials said that he could not wear it at school because it presented
immoral, satanic, and offensive images, which conflicted with Christian beliefs that were widely
held by students and officials at the school. The prior school year, Boroff often wore Marilyn
Manson t-shirts to school, and it caused no disruption. The school continues to let students wear
t-shirts depicting other rock and roll groups, many of which are quite similar to Marilyn Manson.
Additionally, some students are allowed to have small Marilyn Manson patches on their
backpacks and are not sent home or asked to remove them.
Boroff’s mother sued the school district for violating her son’s First Amendment right to free
speech. The district court ruled in favor of the school district and the Sixth Circuit Court of
Appeals affirmed this decision. The U.S. Supreme Court was asked to decide whether the First
Amendment forbids public school officials from banning a student from wearing a t-shirt with a
message that is contrary to the religious beliefs held by the majority of the students. The Sixth
Circuit’s ruling is in conflict with the rulings of the Third and Fourth Circuits on this same issue.

What is the best argument for granting cert?

What is the best argument for denying cert?

Will the Supreme Court grant certiorari in this case?

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 Graphic Organizer

Graphic Organizer
Criteria Case #1 Case #2 Case #3 Case #4

Conflict among
lower courts?

Importance?

Adequate
percolation?

Involvement of
federal government?

Intractable issue
or other considerations?

Should cert be granted

in this case?

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 Answers: Deciding to Decide Activity

Answers: Deciding to Decide Activity

Case One: Drug Sweep in School Parking Lot
While some may believe that suspicionless sweeps for drugs at school are bad policy or maybe
even bad law, there are no circuit conflicts on this issue. The Court did not grant certiorari.

Case Two: Video Voyeurism

The Court denied certiorari in this case. The petitioner’s main argument for the grant was that
the court below got the decision wrong. This is also an issue of state law and doesn’t appear to be
in conflict with other states.

Case Three: Public Money for Computers in Religious Schools

The Court granted certiorari in this case. There was a clear circuit conflict, involvement of the
federal government, impact on many people, and a request from the Solicitor General to take the
case. In Mitchell v. Helms (2000), the Court found that this federal program did not violate the
Establishment Clause and was religiously neutral.

Case Four: School Dress Codes

The Court denied certiorari in this case even though a circuit conflict was present. This case
presents a fairly common situation for the Court as there was a circuit split but one that the Court
found “tolerable.” This case might also have been viewed as presenting a legal issue of
insufficient importance for the Court to grant review.

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