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Most of the cases considered by the U.S. Supreme Court come through a “petition for a writ of certiorari.” A writ of certiorari is an order from the Supreme Court directing a lower court to send the record of a proceeding up for review. Basically, when a court of appeals makes a decision that one of the parties thinks is wrong, the party files a petition for a writ of certiorari (or a “cert petition,” for short) to the Supreme Court, asking the Court to review the court of appeals’ decision. If the Supreme Court thinks the decision is worth reviewing, it will grant the petition and put the case on its docket.
So let’s say you’ve been wronged by the court of appeals. How can you get the Supreme Court to right that wrong? Here are three tips — saving the most important for last:
1. Don’t Waste Your Time
The Supreme Court receives about 10,000 cert petitions each year, and grants only about 75-80 of them—which translates to a success rate of less than one percent. That doesn’t bode well, if you’re hoping the Court will take your case. But don’t despair just yet: this low success rate is skewed by the truckloads of meritless petitions that the Court receives from pro se litigants who don’t know what they’re doing. And the success rate is even further skewed by the many petitions filed by practicing lawyers who likewise don’t really know what they’re doing—because they don’t fully understand how things work at the Supreme Court.
The Supreme Court — unlike the court of appeals — is not in the business of error correction. In other words, the Supreme Court isn’t going to take your case just because a lower court “got it wrong.” The Supreme Court’s job is to resolve questions of significant national importance and to make sure that the law is interpreted and applied consistently throughout the nation. Thus, it isn’t enough for you to complain that the lower court got it wrong.
The most common basis for granting cert is a “circuit split.” This is where the federal appellate courts are in disagreement over how to interpret or apply a particular point of law. If the Third Circuit just handed you a big loss, but it turns out you might have won in another circuit where they’ve decided the same issue differently, then you might have a decent shot at attracting the Supreme Court’s attention. Similarly, a good basis for seeking cert exists where state courts are disagreeing over how to interpret or apply federal law.
If your case doesn’t involve an issue or scenario that will give the Supreme Court good reason to take notice, don’t waste your time and money filing a cert petition. (The Supreme Court still requires briefs to be filed in hard copy, so the printing, copying, and filing costs alone will be somewhere around $3,000 — and that’s not counting the required appendix, or the time it takes to actually write the petition itself.) In other words, if your cert petition isn’t cert-worthy, your chances of getting it granted really are less than one percent.
So the tip here is to spend some time figuring out whether your case is cert-worthy. Most cases aren’t — but if the case is important to you (or your client), it’s worth investigating. And it’s a lot cheaper to figure out up front whether you’ve got a cert-worthy case, than to simply press forward with drafting and filing a cert petition that has no chance at being granted.
If you’re not sure how to figure out whether your case is cert-worthy, talk to an appellate attorney who has some Supreme Court experience. And start looking into itbefore the court of appeals has issued its decision.
2. Don’t Get Ahead of Yourself
For now, forget about why you should win. Instead, focus on why the Court should take your case.
After you lose at the court of appeals, the natural inclination will be to tell the Supreme Court why you should have won. But an appeal to the Supreme Court is a two-stage process, and the cert petition is just the first stage. If your cert petition focuses on why you should have won, you’re getting ahead of yourself — and you’re probably going to kill your chance at getting the Court to take your case. Don’t worry: if the Court does take your case, both parties will file briefs on the merits. That’s when you’ll explain why you should win. But in your cert petition, you need to focus on telling the Court why it should take your case in the first place.
In other words, the cert petition is where you explain why your case is cert-worthy (see Tip #1). This is much different from telling the Court why you should win, so it requires a much different approach. For starters, you need to think a lot less about your particular case and a lot more about the bigger picture involving lots of other courts and cases. In the lower courts, it’s usually hyperbolic (and frowned upon) to claim the issue at hand is one of national importance. But in your cert petition to the Supreme Court, you really do need to explain — convincingly — why the issue at hand is one of national importance. Don’t be afraid to make policy arguments, and to talk about not only what has happened in prior cases but also what might happen in future cases, if the Court doesn’t resolve the issue at hand.
In short, don’t worry (yet) about telling the Court how it should rule; instead, tell the Court why it should rule. Save the bit about winning for later.
3. Focus on Framing the Issue
To paraphrase Sun Tzu: “Those skilled in war bring the enemy to the battlefield of their choosing.”
Perhaps the most important component of your appeal to the Supreme Court is the “question presented.” It appears on the first page of your cert petition, and it will (or should) guide everything that follows. Indeed, if you frame your question effectively, it will guide the Court’s decision — hopefully in your favor.
Ideally, you’ll have just one question to present to the Court. If you have more than one, they should be closely related. If you have multiple questions that aren’t closely related, your case might look too complicated and messy — and the Court will be inclined to wait for a case that provides a cleaner “vehicle” for addressing whichever issue it might have been interested in. Usually you can weed out multiple issues when you’re researching the cert-worthiness of your case, because you’ll need to determine the cert-worthiness of each issue — and few cases have more than one cert-worthy issue. (See Tip #1.) Once you’ve figured out what your issue is, it is crucial that you frame it to your advantage.
Issues are framed as questions for the Court to answer — but often they’re presented as statements. (Yes, that’s what I said: a question in the form of a statement.) For example, the question presented might look something like this:
Whether a court errs by vacating an agency’s decision and remanding for further administrative proceedings, when further administrative proceedings will have no effect on the agency’s decision and will serve no other substantive purpose.
This question has been framed (i.e., phrased) in a way that nudges the reader toward a particular answer. (“Well, of course it seems like error for a court to vacate and remand for further proceedings, if further proceedings are pointless!”) This nudging-through-phrasing is part of what we’re talking about when we talk about “framing” the issue.
But framing the issue is much more than mere phrasing. Framing the issue is about choosing your battlefield. How you frame your issue will have a lot to do with whether you win or lose your appeal.
A good example can be found in the Hobby Lobby case decided by the Supreme Court last term. The central issue in that case was whether a provision in the Affordable Care Act (ACA), which required employers to provide employees with health coverage for contraception, infringed on Hobby Lobby’s rights under the Religious Freedom Restoration Act (RFRA), which prohibits Congress from enacting a law that burdens a person’s exercise of their religion. Hobby Lobby is a for-profit corporation—but it is owned by some religious folks who objected, on religious grounds, to providing access to certain contraceptives. The attorneys for Hobby Lobby framed the question presented so that the focus was on whether Hobby Lobby qualified as a “person” under RFRA—because if Hobby Lobby qualified as a “person” under RFRA, then it was protected under RFRA, and the ACA’s provision should be ruled unenforceable.
With the issue framed this way, the outcome was practically foreordained. RFRA’s statutory definition of “person” includes corporations — so of course Hobby Lobby qualifies as a “person” under RFRA. And sure enough, based in part on this reasoning, the Supreme Court’s majority decided the case in Hobby Lobby’s favor.
But as Justice Ginsburg pointed out in her dissent, the Court was answering the wrong question. The real question, according to Ginsburg and the dissenters, was whether a corporation like Hobby Lobby could “exercise” religion — because if a corporation can’t exercise religion, then the ACA’s coverage requirement can’t be a burden to Hobby Lobby’s religious exercise. Framed this way, the dissenters all agreed that corporations can’t exercise religion — so of course the ACA provision did not violate RFRA.
See what I mean about choosing your battlefield? This is a great illustration of how important it is to frame your issue effectively — to strategically point the Court toward the precise question you want it to answer. Ideally, this framing should begin while you’re still in the district court, or by the time you’ve reached the court of appeals. But at the very latest, it must occur on that first page of your petition for a writ of certiorari.
Devote the lion’s share of your time to framing your issue — searching and researching, thinking and rethinking, writing and rewriting — to get it just right. And this should be part of the process for determining cert-worthiness (Tip #1) — because cert-worthiness itself might be determined by how you frame the issue. These two things, framing the issue and determining cert-worthiness, are a big part of what Supreme Court practice is all about.
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