What Is a Writ of Certiorari?

The definition, application, and examples of this legal term

Supreme Court Hears Nixon Case by Franklin McMahon
Supreme Court Hears Nixon Case. Corbis via Getty Images / Getty Images

In the U.S. court system, a “writ of certiorari” is an order (writ) issued by a higher or “appellate” court to review decisions made by a lower court for any irregularities in legal process or procedures.

The word certiorari (sersh-oh-rare-ee) comes from a Latin word meaning “to be more fully informed” or “to be made certain in regard to.” The act of issuing a writ of certiorari, called “granting certiorari", often abbreviated as “granting cert,” compels the lower court to deliver all records of its proceedings in a case.

Among a sea of largely obscure Latin legal terms, certiorari is of particular importance to Americans because the U.S. Supreme Court, due to its limited original jurisdiction, uses it to select most of the cases it hears. 

The Supreme Court’s Writ of Certiorari Process

Most cases heard by the U.S. Supreme Court begin as cases decided by a trial court, such as one of the 94 U.S. District Courts. Parties dissatisfied with the trial court’s decision have the right to appeal the case to a U.S. Court of Appeals. Anyone dissatisfied with the ruling of the Court of Appeals can then ask the Supreme Court to review the Court of Appeals’ decision and procedures.

Supreme Court review of a Court of Appeals’ decision is requested by filing a “Petition for Writ of Certiorari” with the Supreme Court. The Petition for Writ of Certiorari must include a list of all parties involved, the facts of the case, the legal questions to be reviewed, and reasons why the Supreme Court should grant the petition. By granting the petition and issuing a writ of certiorari, the Court agrees to hear the case.

Forty copies of the printed petition in bound booklet form are delivered to the office of the Clerk of the Supreme Court and distributed to the justices. If the Court grants the petition, the case is scheduled for a hearing.

The Supreme Court has the right to deny the Petition for Writ of Certiorari, thus refusing to hear the case. Rule 10 of the Rules of the Supreme Court specifically states:

“Review on writ of certiorari is not a matter of right, but a judicial discretion. A petition for writ of certiorari will be granted only for compelling reasons.”

While the full legal effect of the Supreme Court’s refusal to grant certiorari is often debated, it has no effect on the decision of the Court of Appeals. In addition, refusal to grant certiorari does not reflect the Supreme Court’s agreement or disagreement with the lower court’s decision.

The Supreme Court’s refusal to grant certiorari creates no binding legal precedent, and the lower court's decision remains in effect, but only within that court’s geographical jurisdiction.

Granting a Petition for Writ of Certiorari requires the positive vote of only four of the nine justices, rather than the five-vote majority required in actual case decisions. This is known as the “rule of four.”

Brief Background of Certiorari

Before 1891, the Supreme Court was required to hear and issue a decision on almost every case that was appealed to it by the local courts. As the United States grew, the federal judicial system was strained and the Supreme Court soon had an insurmountable backlog of cases. To address this, the Judiciary Act of 1869 first increased the number of Supreme Court Justices from seven to nine. Then, the Judiciary Act of 1891 shifted responsibility for most appeals to the newly created circuit courts of appeals. Since then, the Supreme Court only hears appealed cases at its discretion through the granting of a writ of certiorari.

Reasons the Supreme Court Grants Petitions for Certiorari

In deciding which petitions for certiorari it will grant, the Supreme Court strives to hear cases in which its ruling will affect the interpretation and application of the laws involved throughout the United States. In addition, the Court prefers to hear cases in which its ruling will provide definitive guidance for the lower courts.

While there are no hard-and-fast rules, the Supreme Court tends to grant petitions for certiorari for:

  • Cases that will resolve clear conflicts of law: Anytime a number of lower courts issue conflicting decisions involving the same federal law or interpretation of the U.S. Constitution, such as gun control and the Second Amendment, the Supreme Court may choose to hear and decide a related case in order to ensure that all 50 states operate under the same interpretation of the law.
  • Cases that are important or unique: The Court will decide to hear unique or momentous cases such as U.S. v Nixon, dealing with the Watergate scandal, Roe v. Wade, dealing with abortion, or Bush v. Gore, involving the contested 2000 presidential election.
  • Cases in which a lower court disregards the Supreme Court: When a lower court blatantly ignores a previous Supreme Court ruling, the Supreme Court may decide to hear a case in order to correct or simply override the lower court’s ruling.
  • Cases that are simply interesting: Being human, the Supreme Court justices will sometimes choose to hear a case simply because it involves a favorite area of law.

    When it comes to petitions for writ of certiorari, the Supreme Court gets many, but grants few. The vast majority of petitions are denied. For example, of the 8,241 petitions filed during its 2009 term, the Court granted only 91, or about 1.1 percent. On average, the Court hears from 80 to 150 cases each term.

    Recent Example of Certiorari Granted: Roe v. Wade

    In its landmark decision in the 1973 case of Roe v. Wade, the Supreme Court ruled 7-2 that a woman’s right to have an abortion was protected by the Due Process of Law Clause of the 14th Amendment to the U.S. Constitution.

    In deciding to grant certiorari in Roe v. Wade, faced a thorny legal issue. One of the Court’s rules for granting certiorari requires that the appellant, the person or persons appealing the case, have “standing” to do so—meaning that he or she would be directly affected by the Court’s decision.

    By the time the lengthy Roe v. Wade appeal finally reached the Supreme Court, the appellant, a Texas woman (“Jane Roe”) who had sued after having been denied the right to have an abortion under Texas law, had already given birth and surrendered the child for adoption. As a result, her legal standing in the case was uncertain.

    In granting certiorari, the Supreme Court reasoned that because of the lengthy appeals process, it would be impossible for any expectant mother to have standing, thus preventing the Court from ever ruling on abortion or reproductive rights issues. Feeling the law involved merited review, the Court granted the petition for certiorari.

    Recent Example of Certiorari Denied: Broom v. Ohio 

    In 2009, Ohio corrections officials spent two hours trying—but failing—to execute Romell Broom by lethal injection. In March 2016, the Ohio Supreme Court ruled that the state could proceed with a do-over second attempt to execute Bloom. With no other higher court available, Broom and his lawyers asked the U.S. Supreme Court to block any further execution attempts.

    In the Broom v. Ohio petition for certiorari, Broom’s lawyers based their request on the argument that a second execution would violate the assurance against cruel and unusual punishment in the Eighth and Fourteenth Amendments to the U.S. Constitution.

    On December 12, 2016, the U.S. Supreme Court, refusing to hear the case, denied the petition for certiorari.

    In denying Bloom’s petition for certiorari, the Supreme Court stated its belief that any pain Bloom might have experienced during the failed execution attempt failed to amount to “constitute cruel and unusual punishment.” In taking this rather unexpected action, the justices reasoned that since thousands of people are subjected to multiple needle-sticks every day as part of medical procedures, this was neither cruel nor unusual.

    Writ of Certiorari Key Takeaways

    • A writ of certiorari is a decision by the U.S. Supreme Court to hear an appeal from a lower court.
    • The word certiorari comes from a Latin word meaning “to be more fully informed.”
    • The act of “granting certiorari” means the Supreme Court agrees to hear a case.
    • Certiorari must be requested by submitting a Petition for Writ of Certiorari to the Supreme Court.
    • The Supreme Court grants only about 1.1% of the thousands of petitions for certiorari submitted each term.
    • Denying a petition for certiorari has no effect on the lower court’s decision or the laws involved.
    • Granting a petition for certiorari requires the affirmative votes of at least four Supreme Court justices.

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    Longley, Robert. "What Is a Writ of Certiorari?" ThoughtCo, May. 14, 2018, thoughtco.com/definition-of-writ-of-certiorari-4164844. Longley, Robert. (2018, May 14). What Is a Writ of Certiorari? Retrieved from https://www.thoughtco.com/definition-of-writ-of-certiorari-4164844 Longley, Robert. "What Is a Writ of Certiorari?" ThoughtCo. https://www.thoughtco.com/definition-of-writ-of-certiorari-4164844 (accessed May 24, 2018).