The process by which the U.S. Supreme Court decides to hear certain cases and not others is an intricate and enigmatic one. The decision is made during a secret vote, known as the “certiorari” or “cert” process, where a minimum of four justices must agree to grant a case review. While it may seem opaque, some insights into this process have been uncovered through empirical analysis of Supreme Court data from 2017 to 2024.
One critical distinction is between “paid” petitions and those filed “in forma pauperis” (IFP). According to an analysis by Adam Feldman on Empirical SCOTUS, paid petitions are generally more successful in being granted review than IFP petitions. IFP petitions, often submitted by indigent litigants, are less frequently granted as many raise issues that lack broader legal significance or rely heavily on specific case facts.
Several factors can influence whether a petition is granted. Timing plays a role, with filing patterns showing a clustering of petitions between September and November. The Supreme Court’s “long conference” in late September is a crucial moment when justices consider a backlog of petitions, meaning that the selection process can be influenced by the sheer volume of cases received during these months, a pattern discussed in detail here.
The presence of cert-stage amici can also impact the likelihood of review. As demonstrated by Feldman’s analysis, a few strategically prepared amicus briefs can significantly increase the chances of a petition being granted. Conversely, the mere accumulation of briefs is less effective than targeted submissions that address different dimensions of the case.
Finally, the role of “specialist” attorneys brings another dimension into the certiorari equation. In cases where either the petitioner or respondent is represented by such specialists, the likelihood of Supreme Court review changes. In fact, having a specialized attorney on both sides can create a favorable environment for the Court to grant cert, as these cases tend to be well-argued and presented, making the crafting of opinions more straightforward for justices.
Overall, while the Supreme Court’s decision to hear a case might not be entirely predictable, understanding these influencing factors allows practitioners to refine their strategies when seeking review. The nuances of the certiorari process remain a subject of ongoing analysis and discussion, with more insights available through detailed empirical study, such as Feldman’s extended analysis, which can be explored further here.