Overview
Certiorari simply defined is a “writ” by which a higher court (such as an appellate court) reviews some lower court’s decision (such as a district court).
When a party loses in a court of law, often said party is allowed to appeal the decision to a higher court. In some instances, parties are entitled to an appeal, as a matter of right. However, sometimes a party is not able to appeal as a matter of right. In these instances, the party may only appeal by filing a writ of certiorari. If a court grants the writ of certiorari, then that court will hear that case.
United States Supreme Court
Certiorari is generally associated with the writ that the Supreme Court of the United States issues to review a lower court's judgment. A case cannot, as a matter of right, be appealed to the U.S. Supreme Court. As such, a party seeking to appeal to the Supreme Court from a lower court decision must file a writ of certiorari.
In the Supreme Court, if four Justices agree to review the case, then the Court will hear the case. This is referred to as "granting certiorari," often abbreviated as "cert." If four Justices do not agree to review the case, the Court will not hear the case. This is defined as denying certiorari.
"Cert Pool"
Most of the Justices participate in a "cert pool," meaning their law clerks collectively assign out among themselves the various petitions for certiorari (known commonly as "cert petitions") and prepare memoranda for the Justices summarizing the issues and recommending whether or not the Court should grant certiorari. Critics of this process note the shrinking number of cases the Court has agreed to hear in recent years, theorizing that the "cert pool" tends to increase the number of recommended denials.
Reasons For Granting or Denying Certiorari
Rule 10 of the Supreme Court Rules lists the criteria for granting certiorari and explains that the decision to grant or deny certiorari is discretionary. A decision to deny certiorari does not necessarily imply that the higher court agrees with the lower court's ruling; instead, it simply means that fewer than four justices determined that the circumstances of the decision of the lower court warrant a review by the Supreme Court. The Court's orders granting or denying certiorari are issued as simple statements of actions taken, without any explanations given for denial. Some have suggested that the Court should indicate its reasons for denial. However, in Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912 (1950), the Court explained that because of practical considerations (such as allowing the Court to carry out its duties), Congress has allowed the control of the Court's business to remain within the Court's discretion.
For more on certiorari, see this Harvard Law Review article and this University of Michigan Law Review article.
[Last updated in July of 2022 by the Wex Definitions Team]
Primarily appellate, but trial jurisdiction exists in a few specialized types of cases.
- A substantial federal question must be present.
- Must be a real question. If the issue was a long-settled one, then no question exists.
- The federal question must be crucial to the decision.
- Example: If a local obscenity ordinance
is challenged and the Oklahoma Supreme Court holds that the ordinance violates both the state and U.S. constitutions, then the federal question is not crucial to the decision. The ordinance could not stand even if it's okay under the U.S. Constitution because it still violates the state constitution.
- The losing party must have exhausted all state remedies.
- This involves federalism and a respect for states' autonomy. Article IV of the U.S. Constitution declares that
federal constitution and federal laws are the supreme law of the land. This doctrine of national supremacy provides the basis for the U.S. Supreme Court's review of state court rulings.
Nonetheless, a fine balance must be maintained between national supremacy and the rights of states in a federal system. Therefore, the presumption is that the states are capable of rectifying their own errors and the federal judiciary should not step in too readily or easily.
- The losing side in the lower court files a petition for writ of certiorari.
- A writ is a court order.
Writ of certiorari: the order the Supreme Court issues when it agrees to review a lower court decision; or a Supreme Court order agreeing to hear an appeal. - The Supreme Court either denies or grants the petition.
- What does a denial of certiorari
mean? Four of the nine justices did not agree to hear the case. It doesn't necessarily mean that the justices agreed with the lower court decision.
- Possible Reasons for Denial:
- See no flaw in lower court decision.
- No substantial legal issue.
- Court's allowed time filled.
- Waiting for set of facts to address an issue.
- Don't want side issues.
- Possible Reasons for Denial:
- Court agrees to hear only about 1 percent of the petitions it receives, according to a recent USA Today study.
- The Court receives the transcripts.
- Both sides file lengthy case briefs.
- Lawyers for both sides make oral arguments before the court. The justices question the lawyers, but these questions don't necessarily indicate how the justices will decide the case.
- The justices vote in closed system.
- They determine who will write the court's opinion. The chief justice writes the opinion if he is in the majority. If not, then the senior justice in the majority writes the opinion.
- Majority -- at least five of the nine justices agree.
- Concurring -- written when the majority didn't go far enough or went too far; the justice has something else to say.
- Plurality -- opinion supported by more justices than any other opinion in a single case, but not supported by a majority of the justices.
- Dissenting -- minority justices explain their reasons for not agreeing with the majority.
- Per curiam -- an unsigned opinion issued by and for the entire court rather than by one judge writing for the court.