A Petition for a Writ of Certiorari Is Rarely Granted
My U.S. Supreme Court case, Young v. Fitzpatrick, 11-1485, entered the next phase last week. Whether the phase is terminal, or the launching pad for consideration by the Supreme Court, remains to be seen.
With a few obscure exceptions, review by the Supreme Court is discretionary. That is to say, it is not mandatory. The Supreme Court only grants cert. petitions if the case has national significance, most commonly when there is a circuit split; e.g., when one circuit court of appeals publishes an opinion on the same point of law that conflicts with the opinion of another circuit.
This is my first cert. petition, so I don’t claim to be an expert. This blog is not a law review article and I haven’t done extensive research, only just enough. However, this is what I have learned:
The Supreme Court only grants about 1 in 100 cert. petitions. Even this figure is too generous because it includes cert. petitions filed by the United States. The Supreme Court grants nearly half of the cert. petitions filed by the United States.
Most cert. petitions, perhaps two-thirds, are either granted or denied upfront. However, where the Supreme Court thinks the United States may have a substantial stake in the outcome, it refers the cert. petition to the U.S. Solicitor General.
This is known as a Request for the View of the Solicitor General. The Solicitor General is the attorney who represents the United States in Supreme Court litigation.
I filed my cert. petition last June. The Supreme Court requested the view of the Solicitor General in October. In December, I associated with a Supreme Court practitioner, Eric Miller, from Perkins Coie, in downtown Seattle. The two of us flew back to Washington D.C. to meet with the Deputy Solicitor General, Assistant Solicitor General, and about fifteen other senior appellate attorneys with the U.S. Justice Department.
We were ushered into a huge conference room in the Justice Department a few blocks from the Supreme Court building and given an hour to present our case. It was the most interesting and forward-thinking hour I have ever spent as an attorney.
Unfortunately, the Solicitor General came out against us. Last week, he recommended that the Supreme Court deny cert. We filed a supplemental brief in response to the Solicitor General’s brief. The Supreme Court justices are considering the briefs as I write this.
Eric, who is my primary source for most of this information, tells me that, in most cases, if the Solicitor General recommends deny, the long journey to the U.S. Supreme Court is effectively over. However, in Indian law cases, there is still hope, because the United States is often on the incorrect side of the law.
For further information on Young v. Fitzpatrick, see Supreme Court website at: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-1485.htm
For the Supreme Court supplemental briefing on my case, see: http://yalelewislaw.com/files/YoungSuppBriefPetit03Jun2013.pdf
For the Young v. Duenas Court of Appeals of the State of Washington, Division One, published Opinion, see: http://yalelewislaw.com/files/YoungWAApellCrtIPublishedOpinion.pdf