The Supreme Court of the United States stands as the final arbiter in the federal judiciary, yet its processes, particularly the certiorari process, remain cloaked in both clarity and mystery. Each term, the Court receives approximately 4,000 petitions for certiorari, a crucial procedure that allows the Justices to decide which cases warrant their attention. Despite the flood of petitions, the Court grants only around 60, adhering to a century-old tradition that requires the assent of four justices to proceed—a practice known as the “rule of four.”
This blend of transparent petitioning and clandestine deliberation is at the heart of the certiorari process. While the filing of the petitions by the losing parties and the responses by the victors are public, the subsequent deliberations remain ensconced in the Supreme Court’s halls, leaving much of the process concealed from public view. As explained, the certiorari procedure involves both known and clandestine aspects.
Roles within the Court are distributed among clerks and Justices, though the exact nature of their contributions is partly veiled. Most Justices rely on a “pool” of clerks to draft memos that assist in deciding whether to grant a review. However, Justices Samuel Alito and Neil Gorsuch evaluate petitions independently from this pool, providing some diversity in the assessment process. Yet the influence of these memos on the Justices’ decisions remains a topic of speculation.
The intricacies deepen as various factors beyond the criteria outlined in Rule 10 guide decisions to grant certiorari. These include the prestige of the attorneys involved, the judges from the lower courts, and the overall significance of the case. Balancing caution with merit, clerks are wary of recommending the Court take cases that may present procedural complications or politically fraught issues.
Notably, the number of cases granted certiorari has dwindled significantly, a trend that remains enigmatic. Where once the Supreme Court decided close to 150 cases annually under Chief Justice Warren Burger, this number has shrunk to around 60. Various theories, including the impact of the interim or “shadow” docket and possible effects of judicial consensus, have been posited without solid conclusions.
In rare instances, the Court has begun to preemptively grant certiorari before lower courts have completed their reviews, as outlined in Rule 11. This approach, illustrated by cases such as Trump v. Slaughter, demonstrates the Court’s capacity to expedite reviews when deemed of “imperative public importance.”
The certiorari process thus oscillates between the straightforward and perplexing, maintaining its role as a pivotal yet enigmatic element of the Supreme Court’s operations, as discussed in greater detail here. As the process unfolds, it leaves the legal community frequently pondering the mechanics and the oft-opaque criteria that guide the Court’s most selective docket.