Editing Certiorari (section)

==United States==

===Federal courts===

As [[Associate Justice of the Supreme Court of the United States|Associate Justice]] [[James Wilson (Founding Father)|James Wilson]] (1742–1798), the person primarily responsible for the drafting of [[Article Three of the United States Constitution]], which describes the [[Federal judiciary of the United States|judicial branch]] of the [[Federal government of the United States|US federal government]],<ref>The Oyez Project, [http://oyez.org/justices/james_wilson Justice James Wilson] (last visited April 4, 2011).</ref> wrote:

{{quote|In every judicial department, well arranged and well organized, there should be a regular, progressive, gradation of jurisdiction; and one supreme tribunal should superintend and govern all the others.

An arrangement in this manner is proper for two reasons:

# The supreme tribunal produces and preserves a uniformity of decision through the whole judicial system.
# It confines and supports every inferior court within the limits of its just jurisdiction.

If no superintending tribunal of this nature were established, different courts might adopt different and even contradictory rules of decision; and the distractions, springing from these different and contradictory rules, would be without remedy and without end. Opposite determinations of the same question, in different courts, would be equally final and irreversible.<ref>2 ''The Works of James Wilson'' 149–50 (J. D. Andrews ed., 1896).</ref>}}

In the United States, ''certiorari'' is most often seen as the [[writ]] that the [[Supreme Court of the United States]] issues to a lower court to review the lower court's judgment for [[legal error]] ([[reversible error]]) and review where no [[appeal]] is available as a matter of right. Before the [[Judiciary Act of 1891]],<ref>Ch. 517, 26 Stat. 826 (1891).</ref> the cases that could reach the Supreme Court were heard as a matter of right, meaning that the Court was required to issue a decision in each of those cases.<ref>Russel R. Wheeler & Cynthia Harrison, Fed. Judicial Ctr., Creating the Federal Judicial System 17–18 (3d ed. 2005).</ref> That is, the Court had to review all properly presented appeals on the merits, hear oral argument, and issue decisions. As the United States expanded in the nineteenth century, the federal judicial system became increasingly strained, and the Supreme Court had a backlog of cases several years long.<ref>Wheeler & Harrison, ''supra'', at 12, 16.</ref> The Act solved these problems by transferring most of the court's direct appeals to the newly created [[United States courts of appeals|circuit courts of appeals]], whose decisions in those cases would normally be final.<ref>Judiciary Act of 1891 §&nbsp;6., 26 Stat. at 828.</ref> The Supreme Court did not completely give up its judiciary authority because it gained the ability to review the decisions of the courts of appeals at its discretion through writ of ''certiorari''.<ref>§&nbsp;6, 26 Stat. at 828.</ref>

Since the [[Judiciary Act of 1925]] and the [[Supreme Court Case Selections Act]] of 1988,<ref>Supreme Court Case Selections Act, Pub.L. 100-352, 102 Stat. 662 (1988)</ref> most cases cannot be appealed to the Supreme Court of the United States as a matter of right. A party who wants the Supreme Court to review a decision of a federal or state court files a "petition for writ of certiorari" in the Supreme Court. A "petition" is printed in booklet format and 40 copies are filed with the Court.<ref>[https://www.supremecourt.gov/ctrules/rulesofthecourt.pdf United States Supreme Court Rule] {{Webarchive|url=https://web.archive.org/web/20170706190521/https://www.supremecourt.gov/ctrules/rulesofthecourt.pdf |date=2017-07-06 }} 33</ref> If the Court [[Procedures of the Supreme Court of the United States#Selection of cases|grants]] the petition, the case is scheduled for the filing of briefs and for oral argument. A minimum of four of the nine justices is required to grant a writ of ''certiorari'', referred to as the "[[rule of four]]". The court denies the vast majority of petitions and thus leaves the decision of the lower court to stand without review; it takes roughly 80 to 150 cases each term. In the term that concluded in June 2009, for example, 8,241 petitions were filed, with a grant rate of approximately 1.1 percent.<ref>''[[Caperton v. A.T. Massey Coal Co.]]'', 556 U.S. 868, __ (2009) ([[John G. Roberts|Roberts]], C.J., dissenting) (slip op. at 11). See also {{SCOTUS URL|about/justicecaseload.pdf}} (10,000 cases in the mid-2000s); Melanie Wachtell & David Thompson, ''An Empirical Analysis of Supreme Court Certiorari Petition Procedures'' [http://ssrn.com/abstract=1377522 16 Geo. Mason U. L. Rev. 237], 241 (2009) (7500 cases per term); [[Chief Justice of the United States|Chief Justice]] [[William H. Rehnquist]], [https://www.supremecourt.gov/publicinfo/speeches/sp_09-27-01.html Remarks at University of Guanajuato], Mexico, 9/27/01 (same).</ref> Cases on the paid certiorari docket are substantially more likely to be granted than those on the ''[[in forma pauperis]]'' docket.<ref>{{Cite journal|ssrn=1377522|title=An Empirical Analysis of Supreme Court Certiorari Petition Procedures|year=2009|journal=George Mason University Law Review|pages=237, 249|volume=16|issue=2|last1=Thompson|first1=David C.|last2=Wachtell|first2=Melanie F.}}</ref> The Supreme Court is generally careful to choose only cases over which the Court has [[jurisdiction]] and which the Court considers sufficiently important, such as cases involving deep constitutional questions, to merit the use of its limited resources, utilizing tools such as the [[cert pool]]. While both appeals of right and cert petitions often present several alleged errors of the lower courts for appellate review, the court normally grants review of only one or two questions presented in a ''certiorari'' petition.

The Supreme Court sometimes grants a writ of ''certiorari'' to resolve a "[[circuit split]]", when the [[United States court of appeals|federal appeals courts]] in two (or more) [[United States federal judicial circuit|federal judicial circuits]] have ruled differently in similar situations. These are often called "percolating issues".

''Certiorari'' is sometimes informally referred to as ''cert.'', and cases warranting the Supreme Court's attention as "''cert.'' worthy".<ref>''Tipton v. Socony Mobil Oil Co., Inc.'', 375 U. S. 34 (1963)</ref> The granting of a writ does not necessarily mean that the Supreme Court disagrees with the decision of the lower court. Granting a writ of ''certiorari'' means merely that at least four of the justices have determined that the circumstances described in the petition are sufficient to warrant review by the Court. 

Conversely, the Supreme Court's denial of a petition for a writ of ''certiorari'' is sometimes misunderstood as implying that the Supreme Court approves the decision of the lower court. As the Court explained in ''[[Missouri v. Jenkins]]'',<ref>[http://supct.law.cornell.edu/supct/html/93-1823.ZS.html 515 U.S. 70] (1995)</ref> such a denial "imports no expression of opinion upon the merits of the case". In particular, a denial of a writ of ''certiorari'' means that no [[binding precedent]] is created by the denial itself, and the lower court's decision is treated as mandatory authority only within the geographical (or in the case of the Federal Circuit, subject-specific) jurisdiction of that court. The reasons for why a denial of ''certiorari'' cannot be treated as implicit approval were set forth in ''[[Maryland v. Baltimore Radio Show, Inc.]]'' (1950), in which the Court explained the many rationales which could underlie the denial of a writ which have nothing to do with the merits of the case.

===State courts===
Some [[U.S. state|United States state]] court systems use the same terminology, but in others, ''writ of review'', ''leave to appeal'', or ''certification for appeal'' is used in place of ''writ of certiorari'' as the name for [[discretionary review]] of a lower court's judgment. The [[Supreme Court of Pennsylvania]] uniquely uses the terms ''[[allocatur]]'' (informally) and "allowance of appeal" (formally) for the same process. A handful of states lack intermediate appellate courts; in most of these, their supreme courts operate under a mandatory review regime, in which the supreme court must take all appeals in order to preserve the loser's traditional right to one appeal (except in criminal cases where the defendant was acquitted). Virginia has an intermediate appeals court, but operates under discretionary review except in family law and administrative cases. Mandatory review remains in place in all states where the [[Capital punishment in the United States|death penalty]] exists; in those states, a sentence of death is automatically appealed to the state's highest court.

In two states without an intermediate appeals court (New Hampshire and West Virginia), the Supreme Court used to operate under discretionary review in all cases, whether civil or criminal. This meant that there was no right of appeal in either state, with the only exception being death penalty cases in New Hampshire; West Virginia abolished its death penalty in 1965. New Hampshire transitioned to mandatory review for the vast majority of cases beginning in 2004,<ref>{{cite web|title=Supreme Court - Judicial Duties|url=http://www.courts.state.nh.us/supreme/|website=New Hampshire Judicial Branch|access-date=16 November 2014}}</ref> while West Virginia transitioned to mandatory review for all cases beginning in 2010.<ref>{{cite web|last1=Stoneking|first1=Jay|title=State of West Virginia v. McKinley|url=http://www.wvscblog.com/opinion-analysis/state-west-virginia-v-mckinley/|website=West Virginia Supreme Court of Appeals Blog|access-date=16 November 2014|date=1 October 2014}}</ref><ref>{{cite web|title=Rules of Appellate Procedure - Part III|url=http://www.courtswv.gov/legal-community/court-rules/appellate-procedure/Part-III.html|website=West Virginia Judiciary|access-date=16 November 2014}}</ref>

Texas is an unusual exception to the rule that denial of ''certiorari'' by the state supreme court normally does not imply approval or disapproval of the merits of the lower court's decision. In March 1927, the Texas Legislature enacted a law directing the [[Texas Supreme Court]] to summarily ''refuse'' to hear applications for writs of error when it believed the Court of Appeals opinion correctly stated the law.<ref name="Steiner">{{cite journal|last1=Steiner|first1=Mark E.|title=Not Fade Away: The Continuing Relevance of 'Writ Refused' Opinions|journal=The Appellate Advocate|date=February 1999|volume=12|pages=3–6}}</ref> Thus, since June 1927, over 4,100 decisions of the [[Texas Courts of Appeals]] have become valid binding precedent of the Texas Supreme Court itself because the high court refused applications for writ of error rather than denying them and thereby signaled that it approved of their holdings as the law of the state.<ref name="Steiner" /> 

While Texas' unique practice saved the state supreme court from having to hear relatively minor cases just to create uniform statewide precedents on those issues, it also makes for lengthy citations to the opinions of the Courts of Appeals, since the subsequent writ history of the case must always be noted (e.g., no writ, writ refused, writ denied, etc.) in order for the reader to determine at a glance whether the cited opinion is binding precedent only in the district of the Court of Appeals in which it was decided, or binding precedent for the entire state.<ref name="Steiner" /> In contrast, California,<ref>''Sarti v. Salt Creek Ltd.'', 167 Cal. App. 4th 1187, 85 Cal. Rptr. 3d 506 (2008).</ref> Florida,<ref>''Pardo v. State'', 596 So. 2d 665, 666 (Fla. 1992).</ref> and New York<ref>''Mountain View Coach Lines, Inc. v. Storms'', 102 A.D.2d 663, 476 N.Y.S.2d 918 (2d Dept. 1984).</ref> solved the problem of creating uniform precedent by simply holding that the first intermediate appellate court to reach a novel question of law always sets binding precedent for the entire state, unless and until another intermediate appellate court expressly disagrees with the first one. Meanwhile, some states, such as [[Pennsylvania]] and [[New Jersey]], avoid the issue entirely by eschewing regionalized appellate courts; the intermediate appellate courts in these states may hear cases from all parts of the state within their subject-matter jurisdiction.

===Administrative law===
In the [[administrative law]] context, the [[common law|common-law]] writ of ''certiorari'' was historically used by lower courts in the United States for [[judicial review]] of decisions made by an [[administrative agency]] after an adversarial hearing. Some states have retained this use of the writ of ''certiorari'' in state courts, while others have replaced it with statutory procedures. In the federal courts, this use of ''certiorari'' has been abolished and replaced by a [[civil action]] under the [[Administrative Procedure Act (United States)|Administrative Procedure Act]] in a [[United States district court]] or in some circumstances a petition for review in a United States court of appeals.

In 1936, the [[Supreme Court of California]] held that this use of ''certiorari'' was unconstitutional under the [[Constitution of California]], then in 1939 approved of its replacement with [[Writ of mandate (California)|mandate]] (California's version of ''[[mandamus]]'').<ref name="Walker">{{cite journal |last1=Walker |first1=Sam |title=Judicially Created Uncertainty: The Past, Present, and Future of the California Writ of Administrative Mandamus |journal=UC Davis Law Review |date=Spring 1990 |volume=24 |issue=3 |pages=783–839 |url=https://lawreview.law.ucdavis.edu/issues/24/3/articles/DavisVol24No3_Walker.pdf |access-date=3 April 2022}}</ref>