How a case gets to the US Supreme Court

Old TV shows made it seem really easy to appeal to the Supreme Court.

Like when this lady wanted to fight her speeding ticket.

Or on Gilligan’s Island, when Thurston Howell is locked in a bamboo jail and he says,

But even though they make it sound like a right,

nobody is entitled to an appearance at the Supreme Court.

That’s entirely at the discretion of the Justices

and they choose very carefully.

Only a small number of cases get to the Supreme Court, and it’s getting smaller.

Roughly 8,000 cases are submitted each year, but only 80 cases are accepted.

That’s a 1% acceptance rate.

And to get to that 1%, most cases start at the bottom.

The federal court system consists of three layers and the lowest is the district level.

If you lose in a district court you can appeal to the circuit level.

Most of The United States is divided into eleven circuits,

but there’s a twelfth for DC

and a federal circuit that mostly hears patent and military cases.

Above the circuit level is the Supreme Court, the highest court in the land

as long as you don’t count the basketball court that’s above the Supreme Court.

And to get to the Supreme Court, nearly all cases require submitting something called

a "petition for a writ of certio-



“The writ of certiorari”, which is shortened, usually, to “the writ of cert”.

A petition for the writ of cert is a written request asking the Supreme Court to hear a case.

Instead of asking the court to

resolve the facts of a case,

which are nearly always settled in lower courts,

the reasons for granting the petition concern

important questions about federal law.

The overarching goal of the court is to

make sure that federal law is the same across the country

and, so, by federal law I mean the US Constitution and laws passed by Congress.

Professor Greene clerked for Justice John Paul Stevens,

where he became very familiar with cert petitions.

That’s because the clerks review cert petitions for their justices,

who then choose to grant a petition if it passes “the rule of four”,

meaning that four justices want to hear the case.

When the court does not grant cert, it does not imply a decision.

It doesn’t mean that it agrees with the lower court. It doesn’t mean that the individual

justices agree with the lower court decision. It just means that the court has decided that

this particular case is not a case where the court is

going to choose to set law for the whole country.

If cert is granted, a case probably falls into

one of three categories describing most Supreme Court cases.

The first is a case of national importance,

such as when the court decided Bush v. Gore

in order to help determine

who had won the 2000 presidential election.

“Drawing on very rarely used legal powers, The Supreme Court has, for the first time

in American history, decided to step into a legal dispute in the midst of a presidential election."

A second type of case is when a lower court issues a ruling that invalidates federal law.

An example is "Gonsalez v. Raich", in which Angel Raich, a California woman,

challenged federal drug laws after agents

destroyed marijuana plants she had been consuming for medical use.

On her appeal in the Ninth Circuit, judges ruled in favor of Raich,

deciding that she was compliant with a state law authorizing her use of medical pot.

But that ruling conflicted with federal law prohibiting marijuana use.

So when the Ninth Circuit said "it doesn’t apply" that means that if you are medical marijuana

user in California then you can use it without fear of federal prosecution,

but if you are a medical marijuana user in Florida or in New York

then it’s still banned under federal law.

By ruling on the case, Justices were able

to establish the authority of federal law prohibiting the use of medical marijuana.

In the Raich case, the Supreme Court overruled the Ninth Circuit and said that the federal

drug laws can apply to local marijuana use, which means that someone like Angel Raich

can still be prosecuted under federal law even though she can’t be prosecuted under state law.

Third, the court accepts cases in order to resolve a split decision in the lower courts.

This happened in the case "Obergefell v. Hodges",

where a Sixth Circuit ruling that banned same-sex marriage

conflicted with rulings in other circuits that had upheld the right to same-sex marriage.

Obergefell was someone living in Ohio

who wanted to marry his same-sex partner

and was not permitted to do so under Ohio law.

It made its way to the Sixth Circuit. The Sixth Circuit said,

“you have no right to be married because you are a same-sex couple”

and that created a “split”:

a division of authority between the Sixth Circuit, which governs Ohio,

and a number of other circuit courts.

And so, once that happened,

it was fairly clear to, I think, most legal observers that

the Supreme Court was likely to hear the case

because it meant that federal law, the federal Constitution in this case,

applied differently in Ohio than it would in Pennsylvania, for example.

By ruling in favor of Obergefell, the court resolved a circuit split

and made same-sex marriage a right nationwide.

But these three categories are just a framework

for understanding why The Court might select a case.

They are not rules.

Ultimately, which cases get to the court depends on the decisions of individuals:

the sitting justices of The US Supreme Court.