Last month I discussed the difference between trial courts and appellate courts, and I explained that a party who is unhappy with the result of a trial usually has the right to appeal to an intermediate appellate court.  What happens, however, if a party is unhappy with the appellate court’s decision, particularly a federal appellate court?  Does the party have a right to appeal the appellate court’s decision to the U.S. Supreme Court?

That question is the topic of this First Monday column, and the short answer is “no.” Our nation’s highest court has the distinction of getting to pick and choose which cases it will hear.  Far more often than not, the U.S. Supreme Court rejects requests to review an appellate court’s decision.

Here’s how the process works.  Imagine a case that begins in a federal trial court in New Haven.  The case involves the interpretation of a relatively new federal statute.  The plaintiff loses at trial.  He then appeals to the Court of Appeals for the Second Circuit, which is the intermediate federal appellate court with jurisdiction over all appeals from federal district courts in Connecticut, New York and Vermont.

By law, the Second Circuit is required to hear the plaintiff’s appeal.  The Second Circuit concludes that the trial court misconstrued the new federal statute and that the plaintiff is entitled to a new trial.   Significantly, several other federal appellate courts in different circuits had already addressed the same question about the interpretation of the new statute and had reached different conclusions about its meaning.  The Second Circuit disagreed with the reasoning of those decisions.  (A federal appellate court in one circuit is not required to follow the decisions of other circuit courts on similar legal issues.)

The defendant is understandably displeased with the Second Circuit’s decision and believes that the court should have followed the decisions of its sister courts of appeal.  Just as the plaintiff appealed the trial court’s adverse decision, the defendant wants to appeal the Second Circuit’s decision, which is adverse to him.  There’s only one place to go: the U.S. Supreme Court.

The problem the defendant faces, however, is that the Supreme Court is not required to consider the merits of his appeal.  Instead, his lawyer needs to file a document known as a petition for a writ of certiorari—pronounced serSH(ē)əˈrärē.  Lawyers called them cert. petitions for short.

Technically, a writ of certiorari is a direction by a higher court to call up the records of a lower court.  So, in the imaginary case above, the cert. petition is a request for the U.S. Supreme Court to tell the Second Circuit that it intends to review its decision. The hurdle that the defendant faces is that the U.S. Supreme Court receives 7,000 to 8,000 petitions each year, but usually agrees to hear fewer than 100 cases.

How does the court decide which petitions it will grant?  Rule 10 of the U.S. Supreme Court’s rules of practice provide important guidance, so much so that it’s worth quoting in full:

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers: (a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power; (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

In case you’re wondering, it takes four of the court’s nine justices to grant a cert. petition.

In our imaginary case that began in the federal trial court in New Haven, the defendant’s lawyer will argue that the U.S. Supreme Court should “grant cert” because the Second Circuit’s decision conflicts with the decisions of other federal courts of appeal and that the Supreme Court needs to resolve the conflict to ensure uniformity of the law across the entire country.  Readers may be surprised to learn that, due to such conflicts, federal law on a particular subject often varies from one part of the country to another.

Although the U.S. Supreme Court is perhaps best known to the general public for important decisions concerning the interpretation of the federal constitution (e.g., Roe v. Wade, Citizens United, Brown v. Board of Education), the truth is that the bulk of the court’s work involves resolving conflicts over the interpretation of federal statutes.  Not a glorious task, but a very important one.  By the way, the justices don’t read each of the 7,000 to 8,000 cert. petitions themselves.  They have a bevy of outstanding recent law school graduates, known as law clerks, who read the petitions and write short memoranda that summarize the issues for the justices.

This column has focused on how an appeal gets to the U.S. Supreme Court, but our own Connecticut Supreme Court employs a similar procedure.  A party who is unhappy with the outcome of an appeal in the state Appellate Court may file a petition for certification (not certiorari) with the state Supreme Court.  Like the U.S. Supreme Court, the state Supreme Court has the discretion to decide which petitions to accept.  Unlike the U.S. Supreme Court, however, the state Supreme Court receives several hundred petitions each year, not thousands.

That’s all for this First Monday.  Next month I’ll discuss the fundamental attributes of a crime (and get to use one of my favorite Latin terms—mens rea!).

Daniel J. Klau is a judge of the Connecticut Superior Court. Any opinions expressed herein are solely his own and do not necessarily reflect the views of the Judicial Branch. Before his appointment to the bench, Judge Klau served as a law clerk to former Connecticut Supreme Court Chief Justice Ellen A. Peters and then engaged in the private practice of law for 27 years, focusing on appellate, First Amendment and open government litigation. He is an adjunct faculty member at UConn School of Law, where he has taught privacy law since 2003. While in private practice he received numerous awards for his work on behalf of the First Amendment, open government and freedom of information, including the Connecticut Council on Freedom of Information’s 2018 Outstanding Service Award. 

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