How a case gets to the US Supreme Court

How a case gets to the US Supreme Court

October 12, 2019 100 By Stanley Isaacs


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- certioror? certiori? “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.