One of the most often used cliches in American law is, “We are going to take this all the way to the United States Supreme Court.” However, many lawyers and most nonlawyers do not realize how difficult it is to have a case heard by the United States Supreme Court
Unlike other appellate courts that are obligated to hear an appeal, the United States Supreme Court has almost complete discretion on whether to accept a case for appeal.
When the United States Supreme Court accepts a case for appeal it is called granting certiorari. To request that the Supreme Court hears a case, it is necessary that the party seeking the appeal file what is called a petition for certiorari.
The Supreme Court rules specify the types of cases that it will consider hearing on appeal. They highlight that only cases of general importance are heard. Even where a lower court has made an error, the Supreme Court rarely accepts a case to correct a single incorrectly decided case. While the concept may seem wrong, it allows an injustice to remain. Where these criteria are present, certiorari is more likely:One of the most often used cliches in American law is, “We are going to take this all the way to the United States Supreme Court.” However, many lawyers and most nonlawyers do not realize how difficult it is to have a case heard by the United States Supreme Court
(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.
Approximately 7,000 petitions are filed each year asking the Supreme Court to hear an appeal. On average, no more than 150 petitions are granted. In other words, the Supreme Court takes less than 2% of the appeals filed.
Drafting a Petition for Certiorari is an extremely specific legal skill. Opposing these petitions is also a unique skill. While the odds of a petition being granted are very slim, hiring an attorney with Supreme Court experience helps increase your odds of success.
The moral of the story is the next time you say to someone that you intend to fight your legal issues to the U.S. Supreme Court, remember it is unlikely you will actually be able to do it.