In recent years, the court has granted writs of certiorari to about what percentage of petitioners?

Nine justices, all nominated by the president and confirmed by the U.S. Senate.

One is specifically named as chief justice (John Roberts), while others are associate justices.

Primarily appellate, but trial jurisdiction exists in a few specialized types of cases.

Table of Contents Show

Relists and cert grants: Together forever
Less is more with relists
More relists, more likely to be summarily resolved
One-and-done predominates relists
Relist numbers falling
October Terms 2018 through 2020 relist flowchart

Three factors must be present before the U.S. Supreme Court will review a state court decision:

A substantial federal question must be present.
The federal question must be crucial to the decision.
The losing party must have exhausted all state remedies.

The U.S. Supreme Court has almost complete discretion to choose the cases it will hear.

The losing side in the lower court files a petition for writ of certiorari.
The Supreme Court either denies or grants the petition.
What does a denial of certiorari mean? Four of the nine justices did not agree to hear the case. It doesn't necessarily mean that the justices agreed with the lower court decision.
- Possible Reasons for Denial:
  1. See no flaw in lower court decision.
  2. No substantial legal issue.
  3. Court's allowed time filled.
  4. Waiting for set of facts to address an issue.
  5. Don't want side issues.
Court agrees to hear only about 1 percent of the petitions it receives, according to a recent USA Today study.

Here's what happens after the court agrees to hear the case:

The Court receives the transcripts.
Both sides file lengthy case briefs.
Lawyers for both sides make oral arguments before the court. The justices question the lawyers, but these questions don't necessarily indicate how the justices will decide the case.
The justices vote in closed system.
They determine who will write the court's opinion. The chief justice writes the opinion if he is in the majority. If not, then the senior justice in the majority writes the opinion.

Here are the types of opinions:

Majority -- at least five of the nine justices agree.
Concurring -- written when the majority didn't go far enough or went too far; the justice has something else to say.
Plurality -- opinion supported by more justices than any other opinion in a single case, but not supported by a majority of the justices.
Dissenting -- minority justices explain their reasons for not agreeing with the majority.
Per curiam -- an unsigned opinion issued by and for the entire court rather than by one judge writing for the court.

Remanded -- The appellate court returns the case to the lower court, directing the lower court to decide the case consistent with the higher court's opinion.

Certiorari simply defined is a “writ” by which a higher court (such as an appellate court) reviews some lower court’s decision (such as a district court).

When a party loses in a court of law, often said party is allowed to appeal the decision to a higher court. In some instances, parties are entitled to an appeal, as a matter of right. However, sometimes a party is not able to appeal as a matter of right. In these instances, the party may only appeal by filing a writ of certiorari. If a court grants the writ of certiorari, then that court will hear that case.

United States Supreme Court

Certiorari is generally associated with the writ that the Supreme Court of the United States issues to review a lower court's judgment. A case cannot, as a matter of right, be appealed to the U.S. Supreme Court. As such, a party seeking to appeal to the Supreme Court from a lower court decision must file a writ of certiorari.

In the Supreme Court, if four Justices agree to review the case, then the Court will hear the case. This is referred to as "granting certiorari," often abbreviated as "cert." If four Justices do not agree to review the case, the Court will not hear the case. This is defined as denying certiorari.

"Cert Pool"

Most of the Justices participate in a "cert pool," meaning their law clerks collectively assign out among themselves the various petitions for certiorari (known commonly as "cert petitions") and prepare memoranda for the Justices summarizing the issues and recommending whether or not the Court should grant certiorari. Critics of this process note the shrinking number of cases the Court has agreed to hear in recent years, theorizing that the "cert pool" tends to increase the number of recommended denials.

Reasons For Granting or Denying Certiorari

Rule 10 of the Supreme Court Rules lists the criteria for granting certiorari and explains that the decision to grant or deny certiorari is discretionary. A decision to deny certiorari does not necessarily imply that the higher court agrees with the lower court's ruling; instead, it simply means that fewer than four justices determined that the circumstances of the decision of the lower court warrant a review by the Supreme Court. The Court's orders granting or denying certiorari are issued as simple statements of actions taken, without any explanations given for denial. Some have suggested that the Court should indicate its reasons for denial. However, in Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912 (1950), the Court explained that because of practical considerations (such as allowing the Court to carry out its duties), Congress has allowed the control of the Court's business to remain within the Court's discretion.

For more on certiorari, see this Harvard Law Review article and this University of Michigan Law Review article.

[Last updated in July of 2022 by the Wex Definitions Team]

By Ralph Mayrell and John Elwood
on Jan 4, 2022 at 4:14 pm

Regular readers of SCOTUSblog know that in addition to flyspecking the Supreme Court’s docket most weeks to identify cert petitions that the justices are considering repeatedly at consecutive conferences (a practice called “relisting” cases), we periodically crunch the numbers to determine what relisting portends about what the court is likely to do with those cases it has relisted. Relists are a hint that at least some justices want to take a closer look at a case, which is often an indication they may want to grant review or perhaps take summary action in the case. Relists are the shadow docket’s workaday cousin and generally too dull to get a Senate hearing.

A lot has happened since the last time we ran the numbers on the Supreme Court’s relist docket, which was for the 2017-18 term. Because of pandemic-related shortages, it’s harder to buy bikes, tennis balls, and canned goods. The children … they are always home. Oh, and somewhere along the way the Supreme Court got another new justice and discovered that livestreaming oral arguments would not bring about the end–times. But in any event, now we’ve calculated the statistics for the 2018, 2019, and 2020 Supreme Court terms, and we’ve compared them to our earlier observations for the 2016 and 2017 terms. Based on our five-year retrospective, we are happy to report that one thing has stayed mostly the same: Relists remain one of the best predictors of whether the Supreme Court will grant certiorari.

Relists and cert grants: Together forever

While the justices grant only the tiniest percentage of petitions – about 1% of all petitions and about 4% of petitions filed by paying petitioners – relisted cases fare far, far better. For the court’s 2016 to 2020 terms, between 31% and 43% of petitions that were relisted at least once were eventually granted review. And between 66% and 75% of all cases granted certiorari were relisted at least once. The odds vary a bit from year to year, and grants among relists are recently on an upswing, but the basic truth remains: The justices mostly grant cases that they have relisted, and relisted cases are far more likely to be granted.

Less is more with relists

Another longstanding reality is that two relists are not better than one, but are still far better than no relist at all. In other words, the odds of a grant are at their highest when a case is first relisted; as the case is relisted additional times, the odds of a grant fall as it becomes more likely that the court intends to enter a summary decision (the practice by which the court summarily grants cert and issues an opinion, typically reversing or vacating the judgment of the lower court, without receiving merits briefing or hearing oral argument). Between 2016 and 2020, a case relisted two or more times saw its odds of a grant fall to as low as 11 to 15% – still better than the odds of a non-relisted case being granted, but significantly lower than for first-time relists. It appears that the justices generally don’t need that long to decide whether to grant a case and to investigate potential vehicle problems. If the case sticks around longer, it’s because something else is going on.

More relists, more likely to be summarily resolved

That brings us to our next point: As the number of relists increases, so does the chance that a relisted case will eventually be resolved through a summary disposition. This is consistent with our findings in past years. While it remains true as a general matter that serial relists are more likely to result in a summary disposition, the numbers are generally down from a high during the 2017 term.

One-and-done predominates relists

A significant change in relist practice is that the court has tended to relist fewer cases, and the cases that are relisted tend to be relisted fewer times. In the 2017 term, two-thirds of relisted cases were relisted two or more times, whereas in the 2018 to 2020 terms, between 51% and 59% of relisted cases were “one and done” – relisted just once before disposition.

Relist numbers falling

The falling number of relisted cases may reflect the shrinking number of granted cases in recent terms – down to 60 in 2019 and 66 in 2020 from around 80 in 2017 and 2018. The justices may think there’s no point taking a second look at a case by relisting it if they’re unlikely to grant review in any event. The cause of the court’s shrinking docket could be the subject of its own article. But our five-year restrospective confirms that relists remain one of the best means of gaining insight into which cases most interest the justices – and which cases are likely to make up the merits docket even as it shrinks.

October Terms 2018 through 2020 relist flowchart

The authors thank Casey Howard for toiling through three years of Relist Watch articles to gather the raw data – let’s never get three years behind again.