Getting a case to the Supreme Court

We’ve all threatened (at least in our mind) to fight some speeding ticket or poop-scoop fine “[::obligatory shaking fist in air::] all the way to the Supreme Court!”

Now obviously that is often a ludicous threat, but every now and then you hear about a case that makes you wonder – something like Wilma’s House of Doilies v. Califoria. (Yes, I made that up.)And that’s what I’m curious about.

It seems (remember, IANAL) that the little cases are not themselves tried by the SCOTUS (say, did some kid actually rob the grocery store or not?) but rather the legal issues surrounding the case are (like, is said kid old enough to be tried as an adult?, or did his arrest procedure constitute due process?, or was the law he broke constitutional?, etc.). So even though the cases themselves are small, the issues can be huge.

Okay. Now I can’t imagine that some petty criminal is so obssessed with the flaws of the legal system to spend years and years – and no doubt tens of thousands of dollars – pushing and pushing his case through the system in the hope of making it to the SCOTUS.* So somewhere along the line some big interest group – like the ACLU or a labor union or Planned Parenthood – adopts the case and pays all the bills and does all the pushing, right?

Well, how does that behind the scenes business work? Is there someone in those big interest groups on the job 24/7 scouring the dockets looking for test cases that match the lobbying agenda of his/her group. Or are they out there “creating” test cases on purpose with zealot activists who are willing to endure the legal rigamarole for the cause? Or are public defenders – or even accused individuals – phoning up said groups asking that their case be adopted?

  • Though if someone did do it that way I’d love to hear about it.

Hey get that stupid smilie face out of my post! Oh frig.

Well, and actually, no one should want it to go to the Supreme Court. You’d like to win the first time, and have the appeal denied (or the ruling upheld). It ought to be good enough for anyone that they win, at whatever level. I mean, from a practical standpoint.

It sure sounds dramatic, though, dudn’t it?

We had a new administrator who once said that, who said s/he looked forward to the U-M AA case going to the Supreme Court. Only at that point, the current ruling was in our favor. The administrator was, in essence, wishing that the favorable decision would be appealed! And that the SCOTUS would decide to the appeal had merit! It’s a whole new chance to lose! There was much gnashing of teeth here. The administrator meant well, of course, and meant that s/he felt U-M was right, and was so right the question could be settled by The Big Guys. And that the Big Guys should settle the damn issue once and for all.

But it woulda been a whooooole lot cheaper and easier to just win the first time. From a practical standpoint, that’s what we would have preferred.

It’s not always special interest groups. Most big law firms do pro bono work and may end up representing somebody whose case is heard by the Supreme Court. Other times special interest groups pay for it or lend legal assistance. Still other times public defenders might see the case all the way through. So, there’s really not one way it happens.

It happens. A prominent case is Gideon v. Wainwright which established the right to have counsel appointed to indigent defendants. Gideon, a poorly educated guy who was convicted of stealing money from a bar, managed to argue his way up to the Supreme Court. Eventually, Abe Fortas, a prominent attorney who later sat on the Court, took over and actually argued the case for Mr. Gideon.

I have heard, perhaps apocryphally, of lawyers that study cases in the federal circuits, looking for issues that conflict. One of the best ways of getting the Supremes to hear a case is to demonstrate that the federal circuits have ruled differently on the issue. In any event, the lawyer will then offer his services, pro bono, to one side or other other, just so he can have the distinction and experience of arguing in front of the Supreme Court.

The OP is right in that the Court does not try any cases (a few hypertechnical exceptions excepted).

The trial, in a lower court, is where witnesses testify, evidence is presented, and a judge or jury finds the facts. For example, suppose a state has a law against armed robbery, which it defines as theft from a person while armed with a dangerous weapon. Now suppose Joe Blow is accused of robbing the corner liquor store while threatening to bite the clerk (“We all know how dangerous a human bite is!”)

The finder of fact - the jury, or the judge in a bench trial - has the job of deciding what events happen. Was it Joe Blow, or was it a guy who looked like him? Do we believe Joe when he says he was home watching “Bonanza” the entire day? Or do we believe the clerk, who is sure it was Joe that threatened him? Those questions are resolved by the jury.

For the judge to decide, though, is whether Joe’s teeth constitute a dangerous weapon, as contemplated by state law.

An appeals court will not disturb the jury’s finding that Joe did it. But they may decide the judge made a mistake about whetrher or not teeth are a weapon.

For a case to get to the Supreme Court, it generally has to present some issue of novelty, of great importance, and it must be a federal question. That is, Joe’s teeth may get to his state’s supreme court, but it’s unlikely he’d ever get heard at the US Supreme Court, because it’s up the Joe’s state courts to decide what their state law is.

Hope that helps a bit.

  • Rick

And because I live for the hypertechnical exceptions…US Constitution, Article III:

Italicized phrases have been made moot by the Eleventh Amendment.

Speaking of the hypertechnical, when you say “federal question” do you mean “constitutional question”? The reason I ask is I recently read a book about some SCOTUS decisions including appeals from state supreme courts in which the authors repeatedly wrote to the effect of “the Supreme Court could not reverse the finding of the state supreme court but could only decide if the appellant’s Constitutional rights were violated by application of the state law.” Otherwise what would be a “federal question” versus a “constitutional question”? Sorry, in reading over this I’m not being terribly clear I know, so I hope you can figure out what I mean.

A “federal question” is one arising under the Constitution, laws and treaties of the United States…Constitution, U.S. Code, federal regulations, etc., etc. A constitutional question is a federal question, but a federal question ain’t necessarily a constitutional question; for example, say, a construction of the Freedom of Information Act is a federal question but not necessarily a constitutional one.

The doctine you’re referring to concerning state law is that of “independent and adequate state grounds”; if the question raised is one purely of state law, and doesn’t implicate the Constitution, SCOTUS has no power to review it. Further, if two reasons are given for the decision, state and federal, SCOTUS has no power to review it it the state portion of the opinion standing alone is sufficient to support the decision.

No, “federal question” does not mean “constitutional question.” A cause of action authorized under federal law is a federal question. A copyright case, patent case, or trademark case are all federal questions, because they derive from federal law. Environment law, civil rights, or federal criminal law are all federal questions.

When two parties from two different states have a dispute in excess of $75,000, jurisdiction can lie in federal court - this is called “diversity”, rather than a federal question.

But - “constitutional question” DOES mean “federal question”. That is, in additon to what I mentioned above, a constitutional claim means that the Supreme Court can ultimately get the case.

I seem to remember an excellent discussion a few months ago by Bearflag70 and pravnik, among others, on this issue.

  • Rick

Like Bricker, I’ve also heard of lawyers who survey “circuit splits” to find a case that’ll likely go up to the big boys. This is important because the Supreme Court has great discretion to choose its docket – of a few thousand lower-court cases which are appealed to the Supremes every year, the Court hears about 80-90 (called “granting certiorari”). With a very few exceptions, the Court gets to pick and choose which it will address. (Occasionally Congress will pass a law that provides constitutional challenges go first to a special three-judge panel and then, upon appeal, straight to the Supreme Court which must hear the case, but these are increasingly rare – although the recent campaign finance law, currently pending at the 3-judge level, has this provision.)

Some other issues raised by the discussion so far:

The Court has an in forma pauperis docket, whereby litigants are not required to pay the substantial court costs and which is typically crowded with jailhouse appeals, almost none of which are ever granted cert. The U.S. Public Defender Service also provides legal advice to indigent defendants trying to get their cases heard at the Court, and the Service has contacts with outside law firms that assist on a pro bono basis.

The OP mentioned test cases where a case is manufactured for the express purpose of getting court review of an issue. While these happen, they are disfavored because the courts want the people on all sides to bring their A game – the theory is that the adversary system of justice provides a “crucible” whereby every side’s arguments and contentions are attacked and only the strongest, most logical, lines of reasoning can survive. If one side is just going through the motions it will not have the incentive to point out flaws in its opponent’s reasoning or present novel analyses of its own that a party does when it actually has something it cares about on the line.

As others have noted, the U.S. Supreme Court does have original, trial-level jurisdiction over a few disputes. (Fewer, actually, than those noted in the section quoted by Otto, IIRC – while the Congress cannot expand the Court’s jurisdiction beyond the situations listed there in Article III, it can constrain the Court’s jurisdiction.) When such a case arises, the Court usually appoints a special master to function much like a trial judge, collect evidence, and then submit a propsed opinion which the Court typically takes heavily into account.


With the advocacy organizations, such as ACLU, NAACP, etc., who bankroll or actually try cases, they do scour all the cases out there to find the best ones. eg. in a case trying to expand the right of access to abortions, Planned Parenthood is much more likely to choose a case where the facts cry out ‘constitutional injustice’ than one that would appear at the borderline.

They only get a few cases to clarify these constitutional issues, so they want to choose the “A Case”, to adopt the phrase from Cliffy. Once you have your case, you have to work with the facts of that particular case, but you have a lot of leeway in which case you are going to choose.

This thread has further information about the specific situations in which the Supreme Court exercies original jurisdiction.

I bring this up mainly because I just remembered that back in May of 2002, I wrote a letter to the Historian of the Supreme Court asking when was the last time the Supreme Court exercised original jurisdiction and didn’t appoint a master to serve as a trial judge. Haven’t heard anything back yet. Maybe it’s time to send a followup?

How does that work in terms of being admitted to the Supreme Court Bar, or whatever they call it. If a lawyer’s case gets accepted, is he entitled to argue it? I was under the impression that there was a relatively small subset of attorneys appproved to argue before SCOTUS. Is it just the oral arguments I’m thinking of?

I believe that any U.S. attorney who has been admitted to practice more than 5 years or so is eligible to be approved for practice before the Supreme Court. You also need a sponsor or two. A lot of attorneys do it so they can hang the certificate on their wall and such.

I’m not sure what would happen if an attorney who had been admitted less than 5 years was on a case that ended up in the Supreme Court.

It’s worth observing that very few of the cases the Supreme Court decides each year they are obliged to take – it’s their choice to decide which cases of several thousand submitted to them constitute issues they wish to make rulings on. When they choose to accept one, they issue a writ of certiorari to indicate they will hear that case.

Under very rare circumstances, a right of appeal which may be exercised by the losing party in a case exists. Equally rarely, a judge may have the right to certify a case from his court to SCOTUS. The court can also issue a writ of error commanding a lower court to send up its decision for review; this is virtually never used. And perhaps one case per year is heard by a "Special Master’ appointed by the Justices to exercise the original jurisdiction of the court. Bricker or Dewey or minty may be able to address just what those oddball cases are. But nearly every “appeal” to SCOTUS is actually a petition for certiorari, grantable or deniable more or less at the whim of the justices.

From the Rules of the Supreme Court of the United States: