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.
Cert can be granted on the say-so of four of the nine justices.
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
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
Supplemental questions on this:
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?
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.
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.
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.)
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?
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: http://boards.straightdope.com/sdmb/showthread.php?t=493925 (I posted something on point in post 51, and IIRC the discussion of the topic continued).
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.
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.