A writ of certiorari is an order from a higher court directing a lower court to send up the record of a case for review. Under the Rule of Four, at least four of the nine Supreme Court justices must vote to grant this writ before the Court will agree to hear a case.
If you have ever wondered how the U.S. Supreme Court decides which cases to take, the answer lies in these two concepts. The writ of certiorari (often shortened to “cert”) is the formal mechanism that brings a case before the Supreme Court. The Rule of Four is the internal voting threshold that determines whether that request is granted.
In this guide, I will explain what a writ of certiorari is, how the Rule of Four works, why this system exists, and what happens when the Court grants or denies a petition. By the end, you will have a clear understanding of one of the most important procedural aspects of Supreme Court review.
Table of Contents
What Is a Writ of Certiorari?
The term “certiorari” comes from Latin, meaning “to be more fully informed.” In practical terms, a writ of certiorari is a court order that commands a lower court to transmit the record of a case to a higher court for review. The Supreme Court uses this writ as its primary method for selecting which cases it will hear on appeal.
Unlike a typical appeal, where a higher court must review a lower court’s decision, certiorari is discretionary. The Supreme Court is not required to hear any case that comes before it. Instead, the Court chooses which cases warrant its attention based on factors like national significance, conflicting interpretations of federal law, or constitutional questions that need resolution.
When the Supreme Court grants a writ of certiorari, it agrees to review the lower court’s decision on the merits. When it denies the writ, the lower court’s ruling stands as the final decision in that case. The Court receives more than 7,000 petitions for certiorari each term but grants only about 100 to 150 of them.
Why Certiorari Matters for Supreme Court Review
The certiorari system gives the Supreme Court control over its docket. Before the modern certiorari system existed, the Court was often required to hear many more cases, which created docket congestion. Today, the Court can focus on the most important legal questions while leaving routine matters to lower courts.
For parties seeking Supreme Court review, filing a petition for writ of certiorari is essentially asking the Court to exercise its discretionary jurisdiction. The petition must explain why the case deserves the Court’s attention, typically by showing that a federal law has been interpreted differently by different circuit courts or that an important constitutional issue is at stake.
Common Abbreviations and Terminology
You will often see “certiorari” abbreviated as “cert” in legal writing. When the Court agrees to hear a case, lawyers say the Court “granted cert.” When the Court refuses, they say it “denied cert.” Another term you might encounter is “cert. denied,” which appears in citations when the Supreme Court has declined to review a lower court decision.
It is also worth noting that certiorari is not limited to the U.S. Supreme Court. State supreme courts and federal appellate courts may use similar procedures for reviewing lower court decisions. However, when most people refer to certiorari in the context of the Rule of Four, they are discussing the U.S. Supreme Court’s process.
What Is the Rule of Four?
The Rule of Four is the Supreme Court’s internal practice that requires at least four justices to vote in favor of granting a writ of certiorari before the Court will take a case. This means a simple majority of five justices is not needed to add a case to the docket. Instead, a minority of four can ensure that a case receives full review.
Imagine the Court as a group of nine decision-makers. If five justices want to hear a case, the petition is obviously granted. But even if only four justices support hearing a case, the petition is still granted. This threshold ensures that a small minority of justices can bring important legal questions before the Court, even if most justices would prefer not to take the case.
Justice Felix Frankfurter once described the Rule of Four as a working rule that reflects the Court’s sense of self-restraint. By allowing four justices to grant certiorari, the Court prevents a majority from completely controlling which cases are heard. This preserves the ability of minority viewpoints to surface in the Court’s jurisprudence.
How the Voting Process Works
When a petition for certiorari arrives at the Supreme Court, it is distributed to all nine justices for review. The justices meet regularly in a private conference to discuss pending petitions and other matters. During these conferences, they vote on whether to grant or deny certiorari for each petition.
If four or more justices vote to grant the writ, the case is added to the Court’s docket for oral argument and a decision on the merits. If fewer than four justices support the petition, the writ is denied. The Court typically does not explain why it denied certiorari, though dissenting justices may publish opinions explaining their position.
This voting system is not mandated by the Constitution or federal statute. Instead, it is a custom that the Court has followed for over a century. The rule has proven remarkably stable over time, even as the Court’s composition has changed dramatically.
Join-Three Votes and Related Concepts
A closely related practice is the “join-three” vote. Sometimes a justice who does not believe a case should be heard will still vote to grant certiorari if at least three other justices strongly support it. This is a courtesy to colleagues, allowing the case to proceed without requiring the justice to agree with the eventual outcome on the merits.
Conversely, the Court may grant certiorari in a case and later decide that the case was improvidently granted. This happens when the justices realize after hearing arguments that the case should not have been taken, perhaps because a procedural defect or lack of standing makes the case unsuitable for decision. In such situations, the Court may dismiss the writ as “improvidently granted” without ruling on the merits.
The History Behind the Rule of Four
The Rule of Four has its roots in major reforms to the federal judiciary in the late 19th and early 20th centuries. Before 1891, the Supreme Court was required to hear a much larger number of appeals, which created an overwhelming docket and delayed justice for years. Congress addressed this problem through a series of Judiciary Acts that gave the Court more discretion over its workload.
The Judiciary Act of 1891 created the federal courts of appeals and gave the Supreme Court discretionary review over many types of cases. This was the first major step toward the modern certiorari system. However, the Court still faced substantial mandatory jurisdiction that it could not decline.
The Judiciary Act of 1925 and the Judges’ Bill
The most significant reform came with the Judiciary Act of 1925, often called the “Judges’ Bill.” Championed by Chief Justice William Howard Taft and supported by Justices Willis Van Devanter and Louis Brandeis, this legislation dramatically expanded the Court’s discretionary jurisdiction. The Act reduced the categories of cases that the Court was required to hear, giving the justices far more control over their docket.
Justice Van Devanter testified before Congress about the need for reform, explaining that mandatory appeals were consuming time that should be devoted to important questions of federal law. Justice Brandeis also supported the change, recognizing that discretion would allow the Court to focus on cases with broad national significance.
With this expanded discretion came the need for an internal rule to decide when to grant certiorari. The Rule of Four emerged as a practical solution that balanced efficiency with fairness. By requiring only four votes, the Court ensured that a majority could not block consideration of cases supported by a substantial minority of justices.
Evolution and Stability of the Rule
Over the decades, the Rule of Four has remained remarkably consistent. The Court has occasionally debated whether to change the threshold, but the four-justice rule has endured. One reason for its stability is that it serves important institutional interests: it prevents majority tyranny over the docket while ensuring that marginal cases do not flood the Court’s calendar.
The rule also reflects a principle of comity among justices. By allowing four votes to grant certiorari, the Court acknowledges that justices may have different views about which cases are important. What seems insignificant to five justices may appear crucial to four, and the rule ensures those minority perspectives can receive full consideration.
How a Petition for Certiorari Works
Filing a petition for writ of certiorari is a formal process that requires careful preparation. The petition must convince at least four justices that the case presents an important question of federal law that warrants Supreme Court review. Most petitions follow a similar structure, though the content varies depending on the issues involved.
Step 1: Prepare and File the Petition
The petitioner, which is the party seeking Supreme Court review, prepares a document called a petition for writ of certiorari. This document explains the facts of the case, the lower court’s decision, and the reasons why the Supreme Court should grant review. The petition typically argues that a federal statute has been interpreted inconsistently, that a constitutional right has been violated, or that an important question of federal law needs clarification.
The petition is filed with the Supreme Court Clerk, along with required filing fees and copies of relevant lower court opinions. The respondent, which is the opposing party, then has an opportunity to file a brief in opposition, arguing that certiorari should be denied.
Step 2: Distribution and Conference
Once all briefs are filed, the petition is distributed to the justices’ chambers. Each justice and their law clerks review the petition and decide whether to vote for or against granting certiorari. The justices meet in private conference, typically on Fridays during the Court’s term, to discuss and vote on pending petitions.
During conference, the Chief Justice speaks first, followed by other justices in order of seniority. They share their views on each petition and indicate their votes. If four or more justices vote to grant, the petition is added to the Court’s docket.
Step 3: Granting or Denying Certiorari
When certiorari is granted, the Court issues an order directing the lower court to transmit the record of the case. The parties then prepare for full briefing and oral argument. The Court eventually decides the case on the merits and issues a written opinion explaining its ruling.
When certiorari is denied, the lower court’s decision stands as the final ruling in the case. The Court typically does not explain why it denied certiorari, which can be frustrating for petitioners. However, denial does not mean the Court agrees with the lower court’s decision. It simply means the Court chose not to exercise its discretionary review.
Statistics: How Many Petitions Succeed
The odds of having certiorari granted are quite low. Each term, the Supreme Court receives approximately 7,000 to 8,000 petitions on its certiorari docket. Of these, only about 100 to 150 cases are granted review. This translates to a grant rate of roughly 1 to 2 percent.
Most petitions come from criminal defendants, prisoners filing habeas corpus petitions, and parties in civil disputes. Petitions that present circuit splits (where different federal courts of appeals have interpreted the same law differently) have a higher chance of success. The Court also tends to grant cases involving important constitutional questions, federal statutory interpretation, or conflicts between state and federal law.
Certiorari vs. Appeal: What’s the Difference?
Understanding the distinction between certiorari and appeal is essential for grasping how the Supreme Court operates. An appeal is a matter of right: the higher court must review the lower court’s decision. Certiorari is a matter of discretion: the higher court chooses whether to review the case.
Before the Judiciary Act of 1925, the Supreme Court had much less discretion. Many cases arrived as appeals that the Court was required to hear. Today, most cases come through certiorari, giving the Court control over its workload. Only a narrow category of cases, such as certain redistricting disputes, still come to the Court as mandatory appeals.
This discretionary system means that losing in a lower court does not guarantee Supreme Court review. Parties must persuade the justices that their case is important enough to warrant the Court’s limited time and attention. Even a clearly erroneous lower court decision may go uncorrected if the Court denies certiorari.
Frequently Asked Questions
What is the writ of certiorari in simple terms?
A writ of certiorari is an order from a higher court telling a lower court to send up a case for review. The Supreme Court uses it to decide which cases it will hear.
How many justices must vote to grant certiorari?
At least four of the nine Supreme Court justices must vote to grant a writ of certiorari. This is the Rule of Four.
What happens when certiorari is denied?
When certiorari is denied, the lower court’s decision stands as final. The Supreme Court does not explain its reasoning, and the case is not reviewed further.
Why does the Supreme Court use the Rule of Four?
The Rule of Four prevents a majority of justices from controlling the entire docket. It allows a minority of four justices to ensure that important cases receive full review, even if most justices would not choose to hear them.
Can the president overrule the Supreme Court?
No. The president cannot overrule a Supreme Court decision. However, the president can influence the Court by appointing new justices when vacancies occur. Congress can also pass new laws or constitutional amendments to change the legal landscape.
What is the difference between granting and denying cert?
Granting cert means the Supreme Court agrees to review the case on the merits. Denying cert means the Court declines to hear the case, and the lower court’s decision remains in effect.
Conclusion
The writ of certiorari and the Rule of Four are fundamental to understanding how the U.S. Supreme Court selects cases for review. A writ of certiorari is the formal request for the Court to exercise its discretionary jurisdiction. The Rule of Four ensures that at least four justices must agree before the Court takes a case, preventing a majority from monopolizing control over the docket.
This system emerged from historical reforms, particularly the Judiciary Act of 1925, which gave the Court greater discretion over its workload. Today, the Court receives thousands of petitions each term but grants only a small fraction. Understanding this process helps explain why some cases reach the Supreme Court while others do not, even when important legal questions are at stake.
Whether you are a law student, a legal professional, or simply an interested citizen, knowing how certiorari works gives you insight into one of the most powerful institutions in American government. The next time you read news about a Supreme Court case, you will understand the procedural gateway that brought that case before the justices.