SCOTUS question - agreeing to hear a case

[KarlGauss]

The justices of the SCOTUS do not give a reason(s) why they accept or decline to hear cases for review of a lower court’s decision (certiorari). That much I know.

What I am wondering is how many, or what proportion, of the SCOTUS justices must wish to grant certiorari before the case is ‘officially’ accepted by them. Is a simple majority all that’s required? Unanimity? Something else? Thanks in advance! – KG.

[DSYoungEsq]

Cert can be granted on the say-so of four of the nine justices.

Petition for Write of Certiorari on Wiki

[Cliffy]

My recollection is that the rule of four (which is a mere agreement amongst the justices, not a law) was instituted some decades ago in response to a particular incident, but I can’t recall what. Maybe the court-packing plan? Arrgh.

–Cliffy

[Gfactor]

Here is a history of the rule: http://www.allacademic.com//meta/p_mla_apa_research_citation/0/6/2/0/0/pages62000/p62000-5.php

[Polycarp]

Supplemental questions on this:

1. I realize there is no hard-and-fast rule, but can someone state (or is there a good listing to be linked to) of what commonly causes cert. to be granted? I know (or at least think) “serious constitutional question” and “circuit courts are divided” are among such causes; what else?, and what might be better definitions than those?

2. Is there anything for which an appeal to SCOTUS exists as of right any more? I thought there was something rare but still in existence, but can’t find anything about it.

[Gfactor]

@Polycarp

Supplemental questions on this:

1. I realize there is no hard-and-fast rule, but can someone state (or is there a good listing to be linked to) of what commonly causes cert. to be granted? I know (or at least think) “serious constitutional question” and “circuit courts are divided” are among such causes; what else?, and what might be better definitions than those?

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.

2007rulesofthecourt.pdf

[Gfactor]

@Polycarp

2. Is there anything for which an appeal to SCOTUS exists as of right any more? I thought there was something rare but still in existence, but can’t find anything about it.

A few remain: http://www.appellate.net/articles/epitaph.asp

[Northern_Piper]

@KarlGauss

The justices of the SCOTUS do not give a reason(s) why they accept or decline to hear cases for review of a lower court’s decision (certiorari).

There have been the occasional written dissents from a refusal to grant cert.

• Brennan and Marshall JJ. used to issue a routine dissent from a refusal to grant cert. in death penalty cases;

• Stevens J. filed a similar dissent once, but puckishly noted that in the interest of preserving trees and scarce law library shelf space he wouldn’t feel the urge to file a similar dissent every time the issue came up;

• Douglas J. would occasionally file a waspish and petulant dissent when he didn’t get his way in conference.

[Fotheringay-Phipps]

A tangentially related question:

What percentage of SCOTUS opinions overturn the lower court’s (i.e. the Appeals Court’s) opinion versus uphold it?

(My impression is that more than 50% overturn, and that this is because of the “at least 4” policy and the fact that justices are more likely to accept a case if they disagree with the ruling currently in place.)

[Gfactor]

@Fotheringay-Phipps

A tangentially related question:

What percentage of SCOTUS opinions overturn the lower court’s (i.e. the Appeals Court’s) opinion versus uphold it?

(My impression is that more than 50% overturn, and that this is because of the “at least 4” policy and the fact that justices are more likely to accept a case if they disagree with the ruling currently in place.)

Around 70-75% http://www.concurringopinions.com/archives/2007/07/some_thoughts_o.html

The Psychology of the Supreme Court

[Fotheringay-Phipps]

Thank you, Gfactor.

Another question: Suppose the SC declines to hear an appeal that is based on Legal Argument X. Does this imply that a solid majority of the court believes that X has no merit, and that this argument is similarly unlikely to be the basis for a hearing (or at least a successul appeal) as long as the court has the same makeup? Or is it possible that a majority would accept the argument, but the case gets declined anyway because other cases are more compelling and time is limited?

If the former, does this have any standing in another court? IOW, suppose a lower court was subsequently considering Legal Argument X, would it take into consideration that the SC refused to hear an appeal based on this same argument?

[Gfactor]

@Fotheringay-Phipps

Thank you, Gfactor.

The answer to these questions is no. I don’t have time to dig around for cites right now, but we talked about this in a thread within the last few months, and people did cite some stuff there. I’ll at least try to find that.

ETA: Canada Supreme court won't hear obesity two-for one seating case vs. Air Canada - In My Humble Opinion - Straight Dope Message Board (I posted something on point in post 51, and IIRC the discussion of the topic continued).

[Fotheringay-Phipps]

Thanks again.

ISTM that this could lead to incongruous results in the long run.

Suppose you had two appeals submitted to the court. The arguments in Case #1 are completely out of the legal mainstream, while those in Case #2 are mainstream enough to attract the support of 4 Justices. Case #1 gets rejected out of hand, but no precedent is set, so it lives to fight another day, with changes in societal attitudes or even just court composition. Case #2 gets accepted and ruled against 5-4, so a precedent is set against this argument, which is harder to overturn.

[Gfactor]

@Fotheringay-Phipps

Thanks again.

ISTM that this could lead to incongruous results in the long run.

I suspect the article linked in my first post (#4) develops a similar argument. I only had time to glance at it and see that it had the information for which I cited it, so I could be wrong about that.