Your Supreme Court Appeal Checklist: What to Know Before You File
If you have a case that you want to appeal to the Supreme Court of the United States (SCOTUS), you will need to make sure that you have satisfied a couple of requirements and that you are prepared for your appeal. As we have discussed in other articles, an appeal to the Supreme Court requires a petition for writ of certiorari, also known as a petition for a writ of cert. Today we are going to talk about four things you have to be sure you’ve done before you take your appeal to America’s highest Court.
The Supreme Court takes somewhere between 50-80 cases a year. This means that they are not required to take your case, except in very unusual circumstances. Because of this, your petition for a certiorari should make a compelling argument for why your case should be taken.
Here are a few “checklist items” that will improve your chances of having your case heard on America’s biggest legal stage.
1. Have you exhausted all other appeals?
The Supreme Court is not a “Court of Error.” This means that they will not review a case simply because it was wrongly decided. They will only review a matter that has finally been decided at the highest court of appeals of the appropriate jurisdiction.
As a practical matter this means that your case either has to have been reviewed by a Federal Circuit Court of Appeals, or by the highest court in your state or the District of Columbia (in 49 states, that’s the Supreme Court of your state, and in New York and DC, it’s the “Court of Appeals.”) If the highest court in your state has refused to hear the case and affirmed what an intermediate appellate court did, that also counts as “exhausting” your appeals.
SCOTUS does not hear direct appeals from trial courts outside extremely unusual circumstances. Accordingly, you have to make sure that you have done the full appeal process in your state or federal circuit before you ask the SCOTUS to grant cert and hear your appeal.
2. Have you appropriately preserved all claims of error?
The Supreme Court will generally not grant certiorari in situations where an error was not appropriately preserved. This means that the lawyer representing you had to object at the right time or file a motion in the appropriate place to request the relief that you think should have been granted. SCOTUS will not go back and try to undo mistakes that were not properly preserved—they are more interested in dealing with issues where the argument was made to a lower court which inappropriately rejected it.
Part of the reason for this rule is that the Court wants to preserve its energies and efforts for situations where several judges have had the opportunity to write opinions and fully develop the arguments at issue. The Supreme Court wants to put its effort into cases where they can make a difference on the law for the future, not just for the present case.
The Supreme Court will therefore typically decline to take cases if it’s obvious, upon review, that the issues you wish to raise were not “preserved” by trial counsel or litigated on the same arguments below. If you are not sure that this is true in your case, it is important to consult with an experienced appellate attorney before petitioning for cert.
3. Have you looked into whether there are circuit splits or other disagreements on the law in this area?
The Supreme Court generally will not hear a case just because it is wrong. They look for cases where the law needs to be “decided” or further developed. They want cases that present a disagreement between judges in other cases on how to handle the issue.
Under the Federal System, there are a total of thirteen circuits (eleven “regional” circuits, the Federal Circuit, and the DC Circuit) that make decisions about the law. SCOTUS is most interested in taking cases where there are different circuits who interpret the same issue differently. If the Federal law in California is different because of the 9th circuit ruling than the law in Pennsylvania is because of a 3rd circuit ruling, the Supreme Court is more likely to take that case and resolve the “circuit split.”
A circuit split is not required for the Court to take a case. Sometimes SCOTUS will take cases where there is a clear violation of prior precedent or where an important matter of constitutional or legal development is at issue. It is important to consider how your petition will raise the issues that might interest them in taking the case.
4. Have you considered lining up any amici to help?
Have you considered whether to have any amici curiae lined up to support your petition? A petition for a certiorari is bolstered if there are other important people who will tell the court that your case is worth hearing.
In some cases, the state’s Attorney General or the Federal Government will even weigh in on behalf of a particular litigant. In other situations, private non-profit organizations might lend their support. If you have an important issue, you should consider whether any amici curiae would line up to support your claim.
Conclusion
If you need help drafting a petition for certiorari or preparing to potentially present a case to the Supreme Court, contact us at Cornerstone Law Firm. We can help determine if your appeal is ready or if there are other steps you can do to present your appeal to a Court that can help.
Appeal deadlines are generally tight, so if you’ve lost a case or appeal, it’s vital that you reach out right away to schedule. Contact us today.