Writ of Certiorari

Writ of Certiorari

A Supreme Court writ of certiorari is the official way the Court declares it will hear a case and what specific legal issues of the case the Court will consider. The petition for writ of certiorari contains the case’s basic facts, but more importantly, gives the legal arguments and specific and legal questions the petitioner wants the Court to rule on. When the Court grants a petition for writ of certiorari, it states that the petition is granted and names the specific questions the Court will consider while hearing the case.

The Court usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might “harmonize” conflicting decisions in the federal Circuit Courts, and/or could have precedential value. In fact, the Court only accepts 100-150 of the more than 7,000 cases that it is asked to review each year. Typically, the Court hears cases that have been decided in either an appropriate U.S. Court of Appeals or the highest court in a given state (if the state court decided a Constitutional issue).

The Supreme Court has its own set of rules. According to these rules, four of the nine Justices must vote to accept a case. If the Justices decide to accept a case (grant a petition for certiorari), the case is placed on the docket. According to the Supreme Court’s rules, the petitioner has a certain amount of time to write a brief putting forth his/her legal case concerning the issue on which the Court granted review. After the petitioner’s brief has been filed, the other party, known as the respondent, is given a certain amount of time to file a respondent’s brief.

After the initial petitions have been filed, the petitioner and respondent are permitted to file briefs of a shorter length that respond to the other party’s respective position. If not directly involved in the case, the U.S. Government, represented by the Solicitor General, can file a brief on behalf of the government. With the permission of the Court, groups that do not have a direct stake in the outcome of the case, but are nevertheless interested in it, may file what is known as an amicus curiae (Latin for “friend of the court”) brief providing their own arguments and recommendations for how the case should be decided.

Rules provided in the following steps are contained in the Rules of the U.S. Supreme Court.

  • The petition for a writ of certiorari must be filed within 90 days from the date of the entry of the final judgment in the United States Court of Appeals or highest state appellate court, or 90 days from the denial of a timely filed petition for rehearing.
  • The issuance of a mandate or remittitur after judgment has been entered has no bearing on the computation of time and does not extend the time for filing. See Rules 13.1 and 13.3.
  • Filing in the Supreme Court means the actual receipt of paper documents by the Clerk; or their deposit in the United States mail, with first-class postage prepaid, on or before the final date allowed for filing; or their delivery to a third-party commercial carrier, on or before the final date allowed for filing, for delivery to the Clerk within 3 calendar days. See Rule 29.2.
  • File 40 copies of the petition for a writ of certiorari and pay the docket fee.
  • The petition shall comply in all respects with Rule 14 and shall be submitted with proof of service as required by Rule 29.
  • The case then will be placed on the docket.
  • The petition for a writ of certiorari may not exceed 40 pages, excluding Page 1.

Every document (other than a joint appendix), that exceeds 1,500 words when prepared under Rule 33.1, or that exceeds five pages when prepared under Rule 33.2, shall contain a table of contents and a table of cited authorities (i.e., cases alphabetically arranged, constitutional provisions, statutes, treatises, and other materials) with references to the pages in the document where such authorities are cited. The table of authorities should not use the ‘‘passim’’ notation, but should instead list every page on which an authority is cited. Page ranges may be used if the authority is cited on every page in the range (e.g., ‘‘7-10’’ instead of ‘‘7, 8, 9, 10’’).

The documents required to be contained in the appendix to the petition do not count toward the page limit. See Rule 33.2(b).

Pursuant to Rule 34.6, certain types of personal information should not be included in filings. For example, social security numbers and taxpayer identification numbers should be redacted so that only the last four digits of the number are included, and the names of minor children should be redacted so that only initials are included. In general, Rule 34.6 adopts the redaction practices that are applicable to cases in the lower federal courts. See, e.g., Federal Rule of Civil Procedure 5.2.

All documents to be filed in the U.S. Supreme Court must be addressed to the Clerk, Supreme Court of the United States, Washington, D. C. 20543, and must be served on opposing parties or their counsel in accordance with Rule 29.

If your office is served with a petition for writ of certiorari and you do not intend to file a response to the writ petition, you must file the appropriate waiver form with the Court. Any brief in opposition shall be filed within 30 days after the case is placed on the docket, unless the time is extended by the Court or a Justice, or by the Clerk under Rule 30.4. (40 copies shall be filed). A reply brief may be filed by the petitioner 14 days after the brief in opposition is filed (40 copies shall be filed).

Whenever the Court grants a petition for a writ of certiorari, the Clerk will prepare, sign, and enter an order to that effect and will notify forthwith counsel of record and the court whose judgment is to be reviewed. The case then will be scheduled for briefing and oral argument. If the record has not previously been filed in this Court, the Clerk will request the clerk of the court having possession of the record to certify and transmit it. A formal writ will not issue unless specially directed.

Whenever the Court denies a petition for a writ of certiorari, the Clerk will prepare, sign, and enter an order to that effect and will notify forthwith counsel of record and the court whose judgment was sought to be reviewed. The order of denial will not be suspended pending disposition of a petition for rehearing except by order of the Court or a Justice.

NOTE RE ELECTRONIC FILING IN THE U.S. SUPREME COURT – Paper remains the official form of filing at the Supreme Court. Additionally, parties who are represented by counsel must submit electronic versions of filings through the electronic filing system. The “Guidelines for the Submission of Documents to the Supreme Court’s Electronic Filing System” can be found on the Court’s website.

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