Certiorari

Definition

Certiorari (Latin: “to be informed of” or “to be made certain in regard to”) is a writ or discretionary process by which a higher court reviews the decision of a lower court, tribunal, or administrative body. In modern practice, it is most commonly associated with the U.S. Supreme Court’s discretionary jurisdiction: the Court grants writs of certiorari to review cases of national importance.

The term derives from the original Latin writ commanding lower officials to certify records for review. The writ commanded the lower court to “certify” the record of proceedings so that the higher court could examine them. This historical origin is reflected in the modern phrase “granting certiorari” or simply “granting cert.”

Historical Origins

The writ of certiorari originated in English common law as a prerogative writ issued by the King’s Bench to review the proceedings of inferior courts. Alongside mandamus (to command performance of a duty), prohibition (to prevent an inferior court from exceeding its jurisdiction), and quo warranto (to challenge the right to hold office), certiorari formed part of the prerogative writs used to supervise the administration of justice.

The writ was used to bring decisions of inferior courts before the King’s Bench for review. If the inferior court had acted without jurisdiction, the King’s Bench could quash the decision. The writ thus served as a mechanism for ensuring that lower courts stayed within their lawful authority.

English law gradually replaced certiorari with statutory appeals, though the writ survives in some Commonwealth jurisdictions for judicial review of administrative action. In England, the modern equivalent is the “quashing order” under the Civil Procedure Rules, which performs the same function as the historic writ of certiorari.

Certiorari in the U.S. Supreme Court

The U.S. Supreme Court’s certiorari jurisdiction is governed by 28 U.S.C. § 1257 and the Court’s own Rules. The Court’s jurisdiction is almost entirely discretionary—it chooses which cases to hear. The writ of certiorari is the mechanism through which the Court exercises this discretion.

Four of the nine justices must vote to grant a writ (the “rule of four”). The Court grants certiorari in approximately 1% of petitions—about 60–80 cases per term from over 7,000 petitions. The vast majority of petitions are denied, leaving the lower court decision undisturbed.

The Court’s Rule 10 states that certiorari is granted “only for compelling reasons,” including conflicts among federal circuits on important legal questions, conflicts between a federal appellate court and the Supreme Court, state court decisions on important federal questions that conflict with Supreme Court precedent, and issues of exceptional national importance.

The Certiorari Process

The certiorari process begins with a petition for a writ of certiorari, which identifies the questions presented, the lower court’s decision, and reasons for Supreme Court review. The petition is limited to 9,000 words (or 30 pages if printed). It must state clearly why the case warrants review.

The respondent files a brief in opposition arguing why review should be denied. The petitioner may file a reply. The Solicitor General (the federal government’s chief litigator) may file briefs on behalf of the United States, which the Court treats with special weight.

The Court considers petitions at conference, where justices discuss and vote. Before conference, each petition is reviewed by the justices’ law clerks. The cert pool (a system where law clerks from participating justices’ chambers prepare a single memo summarizing the petition and recommending disposition) facilitates this review.

Denial of certiorari has no precedential effect. It merely leaves the lower court decision undisturbed. The Court may deny certiorari for many reasons: the case may be a poor vehicle for deciding the issue, the issue may not be ripe, or the Court may simply choose not to hear the case. A denial of certiorari is not a ruling on the merits.

Factors in Granting Certiorari

The Court considers several factors in deciding whether to grant certiorari. A conflict among federal circuits on an important question is the most common reason for granting. The Court acts to resolve circuit splits, ensuring uniform federal law across the country.

A conflict between a federal appellate court and the Supreme Court also warrants review. If a lower court has disregarded Supreme Court precedent, the Court may grant certiorari to enforce its authority. A state court’s decision on an important federal question that conflicts with Supreme Court precedent merits review.

Issues of broad national significance—even without a circuit split—may attract certiorari. The Court may take cases involving constitutional questions, federal statutory interpretation, or issues that affect the nation as a whole. The Court is more likely to grant certiorari when the Solicitor General recommends review, or when amicus briefs from multiple interested parties demonstrate the case’s importance.

The Court also considers procedural factors: whether the issue was properly preserved below, whether the case is a good vehicle for deciding the issue, whether the record is adequate, and whether there are alternative grounds for affirmance. These “certworthiness” factors affect the likelihood of review.

Certiorari in Common Law Jurisdictions

Other Commonwealth courts use certiorari differently. The Supreme Court of Canada grants leave to appeal using a similar discretionary process. The Court hears about 60–80 cases per year from about 600 applications. Leave is granted where the case involves a question of public importance.

The UK Supreme Court requires permission to appeal, with petitions filtered through a similar process. Permission is granted where the case raises an arguable point of law of general public importance. The Court hears about 60–80 cases per year.

The High Court of Australia grants special leave to appeal for cases of public importance. The Court hears about 40–50 cases per year. Each system balances the need for finality against the importance of uniform legal interpretation. The discretionary jurisdiction enables highest courts to focus on the most important legal questions.

Certiorari in Administrative Law

In administrative law, certiorari remains a remedy for quashing unlawful administrative decisions. Courts issue an order of certiorari to bring a decision before the court and, if the decision is found defective, quash it. This use of certiorari survives in jurisdictions that maintain prerogative writs, including some Canadian provinces and other Commonwealth states.

Grounds for quashing include error of law, procedural impropriety, and irrationality. The court reviews the decision for legality, not merits. If the decision is found to be ultra vires, procedurally unfair, or unreasonable, the court quashes it, leaving the decision-maker to reconsider.

The administrative law certiorari is distinct from the Supreme Court’s discretionary certiorari. It is a remedy available as of right where the applicant can establish a ground for review, not a discretionary grant of review. The term thus has two distinct meanings in modern law: discretionary appellate review and quashing of unlawful administrative decisions.