How Is A Petition for Writ of Certiorari Actually Granted

There are various theories about what makes a petition for writ of certiorari worthy of being granted review by the Supreme Court. The compelling reasons for granting certiorari range from flawed factual findings or misapplication of a properly stated rule of law to judicial decisions that are in conflict with prior decisions of other courts.

However, not much is known about how the procedure through which Supreme Court essentially decides to grant or deny the certiorari. Following is a dekko at the Supreme Court’s set of pertaining rules.

Cert. pool - Once a petition for writ of certiorari is properly submitted to the Supreme Court in the required writ format and using the prescribed Supreme Court paper, every Supreme Court Justice was required to read the petition. Each of the nine participating Supreme Court Justices (or their top-tier team of law clerks) should then prepare a memo of their views and what should be done.

However, given the sheer volume of certiorari petitions received by the Supreme Court in the writ format, this is next to impossible. What actually happens is that there is a cert. pool of all the law clerks and the incoming petitions on the prescribed Supreme Court paper are randomly assigned to any of the law clerks. The Justices also maintain the right to personally read the petition, if they so desire.

Memorandum - The law clerk reads the petition and prepares a brief memorandum summarizing the facts of the case, the lower court's ruling and the petitioner’s contentions. It can also include a recommendation as to whether the case should be accepted or not. The memo is then distributed to all the Justices participating in the pool, for their perusal.

Justices’ Conference – There is a conference every Friday which is attended only by the Supreme Court Justices. No one else is allowed, not even law clerks or secretaries. The Chief Justice makes a list of the petitions for writ of certiorari that merit discussion and other Justices can also add a case to this list. The petitions that do not make it to the ‘discuss list’ are automatically denied certiorari. At the conference, the Chief Justice summarizes each worthy petition and other Justices get a chance to air their views and ask questions.

Rule of Four - After the discussion is complete, the petition is thrown open to vote. The Justices follow a long-standing tradition of Rule of Four by which the votes of a minimum of four Justices at the conference are considered sufficient for granting certiorari.

So, if any four of the attending Justices feel that the questions raised by the petition are compelling enough and vote in favor of it, the clerk of the Court issues a signed agreement called writ of certiorari and the case is placed on the docket. All other petitions are denied certiorari. The decision is usually announced on the following Monday after the conference.

No explanation is given for granting or denying the certiorari. However, after granting certiorari, the court can state that it will review only certain questions raised in the petition or even reformulate some of the questions.

Once certiorari is granted, both parties are appropriately notified. They are required to prepare and file their briefs before the case moves to the stage of oral arguments in court. Later, the Justices again vote on the case at their conference following which the final opinion is drafted and announced in court.

If you wish to add further to the above proceedings for granting or denying a petition for writ of certiorari

, please air your views in the comments section below.

The author, Petar Pattric, has a keen interest in learning the terms and tactics of law and over the years has gained critical insight into its functioning.