Procedures of The Supreme Court of The United States - Selection of Cases

Selection of Cases

Since the Judiciary Act of 1925 ("The Certiorari Act" in some texts), the majority of the Supreme Court's jurisdiction has been discretionary. Each year, the court receives approximately 9,000-10,000 petitions for certiorari, of which approximately 80-100 are granted plenary review with oral arguments, and an additional 50 to 60 are disposed of without plenary review.

The Court strictly enforces its requirements for the preparation and timely filing of certiorari petitions, in order to manage such a massive caseload. This occasionally results in harsh consequences, as Justice Thomas acknowledged in a 2007 opinion: "Just a few months ago, the Clerk, pursuant to this Court’s Rule 13.2, refused to accept a petition for certiorari submitted by Ryan Heath Dickson because it had been filed one day late ... Dickson was executed on April 26, 2007, without any Member of this Court having even seen his petition for certiorari. The rejected certiorari petition was Dickson’s first in this Court, and one can only speculate as to whether denial of that petition would have been a foregone conclusion."

In theory, each Justice's clerks write a brief for the Justice outlining the questions presented, and offering a recommendation as to whether certiorari should be granted; in practice, most Justices (all of the current court, except Justice Alito) have their clerks participate in the cert pool.

During the Justices' regular conference, the Justices discuss the petitions, and grant certiorari in less than five percent of the cases filed. (During the 1980s and 1990s, the number of cases accepted and decided each term approached 150 per year; more recently, the number of cases granted has averaged well under 100 annually). Before each conference, the Chief Justice prepares a list of those petitions he believes have sufficient merit to warrant discussion. Any other Justice may also add a case to the "discuss list"; cases not designated for discussion by any Justice are automatically denied review. The Court or a Justice may also decide that a case be "re-listed" for discussion at a later conference; this occurs, for example, where the Court decides to request input from the Solicitor General of the United States on whether a petition should be granted.

The votes of four Justices at Conference (see Rule of four) will suffice to grant certiorari and place the case on the court's calendar. If the Supreme Court grants certiorari (or the certified question or other extraordinary writ), then a briefing schedule is arranged for the parties to submit their briefs in favor of or against a particular form of relief. During this time, an individual or group having an interest in a case but is not a party to the case may submit a motion to appear before the court as amicus curiae ("friend of the court"). Except for certain specific categories (such as lawyers for state and local governments) or where all parties to the case consent, it is in the Court's discretion whether such motions are granted.

The grant or denial of certiorari petitions by the Court are usually issued as one-sentence orders without explanation.

Cases that fall within the Court's original jurisdiction are initiated by filing a complaint directly with the Supreme Court, and normally are assigned to a special master appointed by the Court for the taking of evidence and making recommendations, after which the Court may accept briefs and hear oral arguments as in an appellate case.