Chapter 1: How the Supreme Court Selects Cases for Review

Understanding how the Supreme Court selects cases for decision–and then decides those cases–is essential to understanding how the Court defines and changes constitutional freedoms. Article III of the Constitution gives the Supreme Court original jurisdiction over “all Cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be a Party.” However, the Court has allowed Congress to assign to federal district courts all of these cases except for those in which one state is suing another. Congress also controls the Court’s appellate jurisdiction, and it only requires the Court to hear cases decided by three-judge district courts, such as reapportionment and campaign finance disputes.^[1] These two categories together produce very few cases for the Court’s docket; in some years, the total number of cases from these two categories (original and mandatory appellate jurisdiction) is zero.

Until 1925, the Supreme Court was required to hear a wide variety of cases. This overwhelmed its docket, and in many cases it summarily dismissed appeals without writing a decision. In 1925, Chief Justice William Howard Taft–the only Justice to also serve as President–convinced Congress to adopt the “Judges’ Bill,” which required losing litigants in certain cases to seek the Court’s permission for review through a process known as certiorari, usually referred to as “cert.” In 1988, the Judicial Improvements and Access to Justice Act eliminated almost all the remainder of the appeals the Supreme Court was require to hear.^[2] Today, losing parties in cases decided by federal courts of appeals can petition the Supreme Court for review. In addition, parties who lose in the highest courts of states can also seek review of federal issues decided by state courts. There are also cases where emergency relief has been denied and losing litigants can seek immediate review through a process known as the Shadow Docket, which is discussed in the next chapter.

Litigants seeking Supreme Court review after they lose in an appellate court must file a petition for certiorai with the Supreme Court explaining why the Court should take the case. Merely alleging that the decision below is erroneous is usually not enough to convince the Court to grant review. Instead, the Court looks for institutional reasons why the judicial system would benefit from review of the case. The most common reason is that the decision below contradicts a decision from another appellate court, so if it is not reviewed federal law would mean different things in different parts of the country. For example, when the Supreme Court granted certiorari in the Sixth Circuit case Obergefell v. Hodges, it sought to remedy a situation where the four states in the Sixth Circuit could bar same-sex marriages while states in other circuits could not. The Court also grants cert when judicial resolution is essential to resolving important problems in federal law, such as determining whether Colorado can exclude Donald Trump from appearing on its Presidential ballot due to section 3 of the Fourteenth Amendment, as the Supreme Court did in Trump v. Anderson, 601 U.S. 100 (2024).

The Supreme Court received 4159 cert petitions in its October 2022 term, which ran from July 1, 2022 to June 30, 2023. Of these, 2907 were in forma pauperis petitions, mostly from incarcerated prisoners unable to pay filing fees, and 1252 were paid petitions.^[3] Each of these petitions was distributed to the offices of the nine justices, who assigned them to clerks for review. Seven justices participate in a cert pool in which one of their clerks summarizes the issues in the petition; Justices Alito and Gorsuch require their clerks to review all cert petitions.^[4] Conferences are held almost every Friday for the justices to review the petitions and decide which to grant.

Not every cert petition is discussed at the Friday conferences. The Chief Justice prepares a list of the cases that he believes should be discussed, and circulates it to the other justices, who may add additional cases. Between 20-30% of the cases appear on the discussion list; those that do not are automatically denied cert.^[5] When the case is called, the Chief Justice ascertains how many justices are willing to grant cert. The Court requires four votes to grant cert, which means that review is denied only if two-thirds of the justices decide not to review the case. In addition to reviewing the cert petitions, the Court also considers submissions by the US Solicitor General, the Justice Department official who oversees the federal government’s litigation in the Supreme Court. If parties interested in the outcome (amici curia) have also filed briefs concerning whether to grant cert, these may also be considered.

The Supreme Court resolves most cert petitions the first time they appear on the discuss list, but not all. Sometimes they are deferred because some justices are undecided, and those voting to grant cert want an opportunity to persuade them. Sometimes the justices want input from the Solicitor General, and they call for the views of the Solicitor General (“CVSG” is the acronym). Sometimes, the Court wants to delay the announcement of its decision for political reasons, as it did in Dobbs, which is discussed in unit seven, chapter 1. And sometimes when there are less than four votes to grant cert, one or more Justices want to write a dissent from denial of certiorari, which puts the cert decision on hold until after this dissent is written. The Court will then return to the case at its next conference and take another vote. If the dissent convinces enough justices to grant cert, it will never be published. Only if it fails in its mission will it be published as a dissent from denial of cert.

This means that the public will never see a successful dissent from denial of certiorari unless it surfaces in the collected papers of a retired Justice. That is what happened in the next case.

Per Curiam.

Petitioner, Bennie Brooks, was convicted of participating in a riot in the Florida prison where he was an inmate and was sentenced to a term of nine years and eight months to run consecutively with the sentence he was already serving. His conviction was affirmed without opinion by the Florida District Court of Appeal, First District, and his petition for writ of certiorari filed in the Florida Supreme Court was dismissed, also without opinion.

The disturbance in the prison occurred on May 27, 1965. The same day, Brooks was ordered confined in a punishment cell for 35 days with two other prisoners also accused of the rioting. Brooks says the cell was 7 feet long and 6 1/2 feet wide; a witness for the State testified it was 6 feet long. This minor difference aside, the parties agree that the punishment cell had no external window, that it contained no bed or other furnishings or facilities except a hole flush with the floor which served as a commode, and that, during the first 14 days he lived in this cell Brooks’ only contact with the outside was an unspecified number of interviews with the prison’s investigating officer. It is also agreed that, while so confined, Brooks was fed a “restricted diet” consisting, according to the testimony of the investigating officer, of “peas and carrots in a soup form” three times daily. Brooks’ more detailed description of this concoction–“they fed us four ounces of soup three times a day and eight ounces of water”–was not controverted, nor was his testimony that he was stripped naked before being thrown into the cell. On the 15th day of confinement under these conditions, Brooks was taken from the punishment cell and again brought directly to the investigating officer. This time, shortly after questioning began, Brooks confessed and dictated his statement into a tape recorder. The recording was introduced at trial. Brooks says that he was brutally beaten by one officer while the other was taking his statement. However, we do not consider this claim because the officer denied it and the judge disbelieved Brooks’ testimony. The judge also concluded that the confession was voluntary. We disagree.

Putting to one side quibbles over the dimensions of the windowless sweatbox into which Brooks was thrown naked with two other men, we cannot accept his statement as the voluntary expression of an uncoerced will. For two weeks, this man’s home was a barren cage fitted only with a hole in one corner into which he and his cell mates could defecate. For two weeks, he subsisted on a daily fare of 12 ounces of thin soup and eight ounces of water. For two full weeks, he saw not one friendly face from outside the prison, but was completely under the control and domination of his jailers. These stark facts belie any contention that the confession extracted from him within minutes after he was brought from the cell was not tainted by the 14 days he spent in such an oppressive hole. In a long line of cases beginning with Brown v. Mississippi, 297 U. S. 278 (1936), and reaffirmed last Term in Clewis v. Texas, 386 U. S. 707 (1967), we have held that the Constitution does not permit prosecutorial use of an involuntary confession. We have also asserted repeatedly that, in adjudicating the question of voluntariness, “we cannot escape the responsibility of making our own examination of the record.” Spano v. New York, 360 U. S. 315, 316 (1959). The record in this case documents a shocking display of barbarism which should not escape the remedial action of this Court. Accordingly, we reverse the judgment below.

*****

H.W. Perry discussed the cert process extensively in his 1994 book Deciding to Decide. Relying on discussions with several Supreme Court Justices and their clerks, he concluded that the justices view the issues presented as either jurisprudential or political. A jurisprudential issue would include resolution of a circuit split or clarification of a federal procedural rule, and in such cases the justices would be primarily focused on resolving the case in a way that would benefit the judicial system. Cert decisions in these cases are often unanimous. In political cases, where the outcome would involve a choice between liberal and conservative values,^[7] cert decisions are more focused on the justices’ political objectives. Since denial of cert means that the lower court decision becomes final, there is no reason for the Court to grant cert unless it wants to affirm the case to create a national precedent. Justices who see to do so might thus aggressively grant cert even though the Court’s decision will not change the outcome of the case. Justices who believe they might be outvoted in political cases might defensively deny cert in cases they disagree with if they believe that granting will result in a national precedent that would be worse than the opinion below, which is only binding on courts in the circuit where it is issued.

Finally, when the Court grants cert, it sets forth a list of questions that the parties must answer in their briefs. This allows the Court to limit the scope of the appeal to the issues it wants to answer. This means that although a petitioner may have several grounds for appeal, most of those are effectively dismissed if the Court does not want to consider them. For example, in 303 Creative LLC v. Elenis, discussed in unit five, chapter 5, the petitioner alleged that a Colorado anti-discrimination law was vague and also violated her right of free exercise of religion. In granting review, the Court chose only to review her free speech argument. The Court can also expand the scope of review by introducing questions that were not raised in the petition for cert. For example, when the Supreme Court granted cert in Dobbs, it asked the parties whether Roe v. Wade be overturned even though the issue had not been raised in the cert petition.