How Does a Case End Up at the Supreme Court? [No. 86]
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How Does a Case End Up at the Supreme Court? [No. 86]


Cases come to the Supreme Court almost exclusively
from two sources. A decision of a state Supreme Court that involves
a federal question, constitutional or statutory. And cases from the federal courts of appeals
that raise a question that the court decides is worthy of further review, or in a few instances
that have to be heard by the Supreme Court by reason of appeal. The court system is hierarchical with three
tiers in the structure. So there’s a trial court and a court of appeals
and then ultimately a Supreme Court. The facts have been settled by the trial court
and will not be upset unless there is a blatant or so-called clear error. The federal circuit courts and the intermediate
courts of appeals in the states are reviewing decisions of the trial courts and there the
review is de novo, meaning to say without any deference to the trial court. The court of appeals makes its own decision
about what the law means. The losing party in any court of appeals or
in a state Supreme Court may petition for further review in the Supreme Court. The way in which one requests review by the
court is to petition for a writ of certiorari. That is a writ that would be directed to the
lower court to send the record to the Supreme Court. Typically, the justices receive a recommendation
from their law clerks or in the last few decades there has been a certiorari pool in which
one law clerk from one of the justice’s chambers writes a memorandum that is sent to all of
the justices in the pool. The Supreme Court decides whether to accept
the case for review or whether to grant a petition for certiorari by a vote of its members. It takes four votes out of the nine for a
petition to be granted. The court is now receiving upwards of 8,000
petitions for review every year and is hearing about 80 cases a year. So that’s about one percent of the requests
that it receives. Of the 80 or so cases that the Supreme Court
hears every year, about a quarter are cases raising constitutional issues and some of
those are very important or very controversial. The other 60 cases that the court hears each
year may be relatively routine statutory questions in which different courts of appeals have
come to different conclusions and the Supreme Court needs to resolve the conflict so that
people know what the law means and what their rights and obligations are.

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