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Appealing To The United States Supreme Court
Phrases such as “High Court” and “last resort” identify the United States Supreme Court. For cases properly before it, the Supreme Court has the final and ultimate say.

With very limited exceptions, most cases come to the United States Supreme Court as appeals from the decisions of lower courts — often appellate courts themselves. The U.S. Supreme Court hears and rules upon 100 to 150 cases in a typical year. As explained below, getting before the Court is difficult and rare.

Requesting a Review By the Supreme Court

Generally, a criminal defendant has a right to appeal a federal conviction to a federal court of appeals. The federal court system maintains a Court of Appeals in the District of Columbia and 12 circuits based on geography. (The District of Columbia is its own federal circuit.)

By contrast, a defendant does not have a right to the U.S. Supreme Court’s review of a conviction. The Court, in its discretion, may take the case. To obtain review, a defendant must petition the Supreme Court for certiorari. The High Court rarely grants these requests. Roughly 7,000 petitions come before the Court annually. It takes four of the nine justices to grant certiorari. For death penalty cases, the Court’s rules call for five justices to approve the request.

Good candidates for Supreme Court review are cases where federal circuit courts of appeals have rendered conflicting decisions on the issue at hand. Such cases must also have significance to the law and the public. Often, these cases touch upon violations of constitutional rights or whether particular conduct is or can be considered criminal. For instance, different circuit courts may differ upon whether a particular search or seizure is unreasonable and violates the Fourth Amendment. Lower appellate courts may also contradict each other on whether a criminal statute infringes upon constitutional rights such as freedom of speech or freedom of religion.

The US Supreme Court may also take a case to reverse a lower court decision that conflicts with the High Court’s established precedent.

Even if grounds exist for certiorari, a federal appeals lawyer must often supply other reasons in the petition for review. Notably, the high court likely will not review a case if the conviction could be affirmed for reasons unrelated to the issue to otherwise be reviewed.

What Does the U.S. Supreme Court Decide — and Not Decide?

In its appellate capacity, the U.S. Supreme Court does not determine the facts of the case, weigh the evidence or assess witnesses’ credibility. It decides only if the lower court correctly applied the relevant law to those facts. Lower courts face reversal of their judgments and rulings for reasons such as applying the wrong burden of proof to a prosecution or admitting or excluding evidence in violation of a constitutional right provision. For these situations, the High Court may order a new trial.

In some cases, the High Court may determine that the alleged conduct is either not a crime or may strike down a statute as unconstitutional. Such rulings will result in dismissal of the criminal charges.

What Does an Appellate Lawyer do in a Supreme Court Appeal?

Once the Court accepts a case for review, the appellant (petitioner) must prepare and file a brief. In the brief, the petitioner argues why the Supreme Court should reverse the lower courts’ actions. The Court sets rules for page limits, paper size and type and the formatting. The petitioner’s brief must contain a statement of the Court’s jurisdiction (power) to hear the appeal, the questions presented in the appeal, a statement of the facts in the case and the legal arguments. The Supreme Court requires verbatim quotations of applicable constitutional, statutory or regulatory provisions at issue. With the likelihood of numerous pages for these items, most briefs must have a table of contents and a table of the statutes, cases, regulations and other authorities cited in the briefs.

After the petitioner files his or her brief, the Solicitor General files a responsive brief on the U.S. Government’s behalf. The respondent explains why the conviction or judgment should be sustained. Unless the respondent disagrees with the petitioner’s version, the respondent’s brief will not have the statements required in the petitioner’s brief. Groups such as law enforcement agencies, prosecutors, civil liberties groups, public defenders or private parties may file amicus curiae (“friend of the court”) briefs.

After the briefing, the lawyers appear for oral arguments. This process allows the justices to quiz the attorneys about the merits of their positions. Justices may question the applicability of cases or statutes upon which the parties rely, whether the parties’ arguments conflict with standing precedent and even the parties’ version or interpretation of the facts or other matters in the record.

An experienced appellate lawyer can help defendants pursue the reversal of wrongful convictions. That experience is necessary to navigate the many time limits, format standards and other rules that apply to presenting an appeal to the U.S. Supreme Court.

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