29 Nov 23

Taking Your Case to the U.S. Supreme Court

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Last Updated on: 15th December 2023, 05:34 pm

Taking Your Case to the U.S. Supreme Court

So you think you have a case that’s important enough to go all the way to the Supreme Court, huh? Well let me tell you, it’s not as simple as just filing some paperwork and showing up on the steps of the marble palace. The Supreme Court is extremely selective about what cases it hears each year. Out of the thousands of petitions it gets annually, the Supreme Court usually only takes around 100 to 150 cases. So how do you get yours to be one of those lucky few? I’ll walk you through the process and let you know what you’re up against.

First Things First – Understand the Role of the Supreme Court

The Supreme Court is there to decide matters of federal law and to resolve conflicts between lower courts. It does not take cases just because you think a lower court got something wrong. The Justices are looking for cases that have broad, national significance. They want to tackle issues that affect many people, not just settle small, individual disputes. So if your case is extremely narrow or trivial, you can pretty much forget about getting Supreme Court review.

Start at the Beginning – Lower Courts First

Before you can even think about going to the Supreme Court, your case needs to work its way through the lower courts first. You must start at the U.S. District Court level and get a ruling there. If you lose, you can appeal to the Circuit Court of Appeals. The Supreme Court will almost never take a case until it has gone through the full lower court process. This serves to develop the factual record and legal arguments on both sides.

Identifying a Legal Conflict

One of the main reasons the Supreme Court will take a case is if there’s a “circuit split.” This means that two or more Circuit Courts have ruled differently on the same issue of federal law. For example, the 6th Circuit says X is legal but the 9th Circuit says X is illegal. This creates confusion and inconsistency. The Supreme Court will want to resolve the conflict and make a definitive ruling. So if you can show your case presents an unsettled point of law, you have a better shot.

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It’s All About the Petition

To request Supreme Court review, you must file a formal petition for a Writ of Certiorari. This is a legal document that explains why your case is so exceptionally important that it warrants the Justices’ attention. You need to lay out clear, compelling reasons they should take your case over the thousands of others vying for review. Be sure to highlight any circuit splits or major constitutional issues. Follow all the formatting rules to the letter and stick to the page limits. Sloppy or overly long petitions go straight to the reject pile.

The Justices Confer

If your petition makes it past the initial vetting by the Clerk’s office, it will get circulated to the Justices’ chambers. But don’t get your hopes up yet. The Justices rarely grant review at this stage. Your petition will likely get scheduled for one of the Justices’ private conferences, where they discuss cases and vote on whether to grant cert. You need at least 4 votes to get your case heard. If not, it’s rejected. Tough luck. If they do decide to take your case, congratulations – you’ve beaten steep odds. But your work isn’t over yet.

Briefs, Arguments and Opinions

Now the real fun starts. You’ll need to file extensive written briefs making your best legal case and respond to the other side’s briefs. Eventually you’ll get to make oral arguments before the Justices. They’ll pepper you with tough questions, so be ready! After oral arguments, the Justices will confer, vote and issue their final decision. The opinion will explain their legal reasoning and whether you won or lost. The Supreme Court’s word is final – there are no more appeals after this. Hopefully all your hard work pays off with a favorable ruling!

It’s a Long Shot, But Possible

As you can see, getting to the Supreme Court is no easy feat. Most petitions fail at the very first step. But with a legitimate conflict between Circuit Courts, or a case involving key Constitutional rights, you just might have a shot if you do everything right. Sure, it may seem like only big corporations and the government get heard by the Supreme Court. But individuals do sometimes break through, especially if you have a good public interest lawyer on your side. Don’t expect any quick resolutions though – the whole process can easily take a year or more. Still think your case has what it takes? Then polish up that petition and get ready for the long haul!

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The Certiorari Process
Supreme Court Procedures
How the Supreme Court Works