The SCOTUS Cert Pool – A Basic Introduction

Posted: September 10, 2012 in law, legal definitions and issues
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US Supreme Court
by dbking/flickr

The Supreme Court Of the United States (SCOTUS) has virtually unlimited power that is difficult to quantify. This has been true since the fourth Chief Justice, Justice Marshall. Even though landmark decisions from the United States Supreme Court shape and radically transform our lives, we may not know much about their or path to the Supreme Court in the first place. These decisions often trace back to individual citizens. Miranda, written by Chief Justice Earl Warren in 1966, for example, essentially addressed detainment and torture. Dred Scott, which prevented blacks from citizenship and access to the courts, was voided after the Civil War with the Thirteenth and Fourteenth Amendments.

The Supreme Court

The Supreme Court of the United States is a discretionary court with ultimate appellate jurisdiction, and it has nine Justices: Chief Justice Roberts (hence the name “The Roberts Court”), and Associate Justices: Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. SCOTUS Justices serve on the high Court for life and there are currently three living retired Justices: John Paul Stevens, Sandra Day O’Connor, and David Souter.

The Roberts Court is a conservative Court: Justices Roberts, Scalia, Thomas and Alito are conservative; Ginsberg, Breyer, Sotomayor and Kagan are liberal; Kennedy is considered to be the conservative swing vote.

The Cert Pool and the September 24, 2012 Conference

On September 24, a conference is scheduled in the United States Supreme Court, where a miniscule handful of legal cases on appeal will be chosen from many hundreds for a review. Being in the group (called the “cert pool”) can lead to weeks of insomnia and hopelessness even given the academic awareness of long odds. One is far more likely to be struck by lightning. Out of 8000 or so yearly cases, there may be decisions in only 150 cases, with full written opinions in 60-70, give or take. Statistics on 2011 opinions and dissents are here.

How cases get to the United States Supreme Court

Unless a person waives the right to appeal a decision in a legal case, everyone can pursue appeal of a judgment. Cases are either criminal, civil or military and they can come from the states, territories or the federal courts. During the initial process of appeal, called the “direct appeal,” courts of appeal will decide the case on appeal and affirm the result or reverse it. My state has a trial court and two courts of appeal. The process of direct appeal must be exhausted before one can petition the United States Supreme Court to review the case. This request is called a Petition for Certiorari. It is worth noting that the issues at trial are very different from the issues on appeal. The cert petition must be focused on one or two major issues and essentially condensed into one concise question.

Clerks for the Justices review, summarize and make notes on each incoming petition. The entire pool is then scheduled for a conference. At the conference the Court denies the overwhelming majority of the petitions without comment. Needless to say, the clerks can influence the petitions surviving the sweeping first cut. There is a good deal of creative speculation about what sorts of strategies may strengthen or weaken a petition’s chances. While Justice Alito is the only Justice who does not participate in the cert pool, he does write opinions on petitions ultimately selected. The September conference has 1898 petitions in it. At the SCOTUS blog, the petitions listed “Petitions We’re Watching” will likely be addressed in the conference. The Prop 8 DOMA (Defense of Marriage Act) is on the list, for example.

Aside from final decisions in capital cases, denial of a Petition for Certiorari has no effect on the interpretation, future course of litigation or future citation of the underlying case. It simply means that the Court declined to look at the case. Defendants in criminal cases who receive denial of certiorari will generally proceed with the appeal through the next step, which is called a State Habeas Petition. Criminal cases comprise approximately 40 percent of the cert pool.

The Court is naturally interested in issues that carve out and define the Constitution. Some cases present a set of facts that fit this task, like the recent Fourth Amendment GPS tracking device case. Written opinions then become the controlling and binding authority in all future cases. Miranda v Arizona is an example. According to various articles online, the Court is unlikely look at individual cases to resolve disputed facts or address a reported mail order catalog of clearly erroneous Other Stuff that represents no far-reaching significance. The Court will often choose a case that has reached a conclusion that departs from binding authority, particularly if that authority is a Federal one (ie the State Court conflicts with SCOTUS precedent). If a US Federal Court of Appeals Circuit case conflicts with another Circuit, the Supreme Court will resolve the “split.” This online site monitors Circuit splits.

As one who is in the cert pool, I began to educate myself because I had no idea how the process works. Federal courts are completely different than state trial courts and Courts of Appeal. I follow the pool with a sort of amazement and occasionally foray into reading tea leaves. I also realize that many cases have long and painful histories of litigation.

Since I mostly follow criminal cases for my own research, my interests naturally gravitate to the Fourth, Fifth, Sixth, Eight, and Fourteenth Amendments, and in the future I may touch on some of the recent cases with these issues. I will also talk a bit about the cert petitions, the responses, the waivers, and the invited responses as well as the types of rulings.


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