One of the more frequent questions we get here at SCOTUSblog is how the court decides which cases to review on the merits – that is, to have additional briefing and oral argument on, followed by a written opinion. Although this has been written about in SCOTUSblog before, we thought it might be useful to have a thorough refresher on the subject as the court picks what cases to hear next term.

In many ways, the initial decision to review a case is the most consequential: after all, nearly every landmark ruling in the court’s history, from the recognizable names of Tinker v. Des Moines Independent School District to Dobbs v. Jackson Women’s Health Organization, began with the filing of a petition for a writ of certiorari. And having a petition granted is remarkably rare: of the 3,856 petitions filed in the 2024 term (2,527 of those being in forma pauperis, or without paying filing fees or following printing requirements due to a financial inability), only 73 (or 1.9%) of these were granted and argued on the merits.

But let’s begin at the beginning.

What is a cert petition?

Certiorari, Latin for “to be more fully informed,” is the mechanism by which a higher court “calls up,” or accepts the record (that is, the evidence, papers, and proceedings) of a lower court.

As the court’s recent exhibit on the petition process explained: “A petition for a writ of certiorari, or ‘cert petition,’ is a document by which a litigant who lost in another court asks the Supreme Court to review their case.” Under the Supreme Court’s rules, a cert petition normally must be filed within 90 days (extendable up to 120) after the lower court issues its final judgment. (In March 2020, the court extended the deadline to 150 days from the lower court’s judgment, before returning to the original deadline in July 2021.) Notably, the cert deadline in civil cases is mandatory and jurisdictional – it cannot be further extended. The deadline in criminal cases can be relaxed, in theory, but the court does so very rarely.

As the court exhibit further explains (and as we’ll get into more later): “A cert petition presents legal questions the petitioner” – the litigant seeking Supreme Court review – “believes call for the Supreme Court’s review and explains why the Court should hear the case. Most commonly, a successful cert petition will show differences between courts that have decided the same legal question.” This alludes to the fact that the Supreme Court is not, primarily, a court of error correction: in other words, its job is to decide unresolved legal questions, rather than to fix lower court mistakes. And by granting cert, the court is not automatically signaling agreement or disagreement with the lower court’s ruling.

But the court did not always get to choose which cases it would decide. Before 1925, many categories of cases carried an automatic right of appeal to the Supreme Court, meaning the justices did not have discretion over what cases they heard.

That changed with Chief Justice William Howard Taft. As the inscription of Taft’s bust at the Supreme Court building reads: While chief justice from 1921 to 1930, Taft “coordinated the effort to change the Supreme Court from a Court of Error to one tasked with uniformity of interpretation of law.” Specifically, “his efforts led to the passage of the Judiciary Act of 1925, which solidified the cert process as the main pathway for Supreme Court review of a case.”

Today, thanks to Taft’s efforts, the Supreme Court thus has nearly complete discretion over its docket. In other words, if the justices don’t want to hear a case, they usually don’t have to. There are two exceptions to that general rule. The first is for cases which fall under the court’s original jurisdiction, which means that they go straight to the court, without having a trial or an appeal in a lower court first. These traditionally involve such things as disputes between two or more states over matters like boundaries or water rights, or between states and the federal government. There are also a handful of cases over which the court has mandatory appellate jurisdiction – such as rulings by three-judge district courts in redistricting cases. In such cases, the justices must take some action on the appeal – whether that is to affirm the lower court’s decision without further briefing, reverse it, or hear oral argument and issue a decision on the merits.

How does the cert process get started?

The party seeking Supreme Court review is known as the petitioner, while the side that won below – which typically opposes Supreme Court review – is known as the respondent. After the petitioner files its cert petition (which again, must generally be done within 90 days of the lower court’s final judgment), the respondent has 30 days to file a brief arguing that the Supreme Court should not hear the case. The petitioner may also file a reply brief, which is due 14 days after that, unless the petitioner wants to file it sooner to expedite the court’s consideration of the briefs.

Outside individuals or groups with an interest in the issue at the center of the dispute can also file “friend of the court” (amicus) briefs at this stage, asking the justices to grant review. An amicus brief in support of the petitioner must be filed within 30 days after the case is placed on the docket or the court calls for a response (whichever is later). (For those really into this stuff: An amicus brief in support of an original jurisdiction case has 60 days.) Amicus briefs in support of the respondent are rare (because respondents generally want to downplay the case’s significance), but they have their own deadline (see, we told you this would be thorough!).

The whole bundle of certiorari-stage documents (the petition, brief in opposition, reply, and any amicus filings) is then distributed to the justices’ chambers for review – an action that is reflected on the court’s electronic docket with the notation “[Distributed].” Filings are submitted both electronically and on paper – paper is the official means of filing, so electronic filing requirements are in addition to, not a replacement for, the existing paper requirements. For paid petitions, 40 booklet-format copies are required, with IFP petitioners exempt from these printing and copy requirements.

The cert pool, the discuss list, and the dead list

Seven of the nine current justices (everyone except Justices Samuel Alito and Neil Gorsuch) participate in the “cert pool,” a labor-saving device in which a cert petition is first reviewed by a law clerk in one of the seven chambers. That clerk typically prepares a memo (known as a “pool memo”) about the case which includes an initial recommendation as to whether the court should review the case. That memo is then circulated to all seven chambers and reviewed by the clerks in those chambers (and perhaps even by the justices, depending on the issues it raises). As for Alito and Gorsuch, their clerks review all the cert petitions filed each year, which makes for a lot of work but potentially acts as an independent check on the cert pool process to ensure that nothing is missed.

Once those recommendations have circulated, any justice can flag a petition for discussion at the next private conference. Petitions that clear this threshold are added to the “discuss list.” If no justice asks to add a case to the discuss list, it is placed on the “dead list,” and certiorari is automatically denied without the justices having ever discussed or voted on it. The dead list is not published and is never explained. For most petitions, that is both the outcome and end of the road.

The conference

But for those petitions that make it to conference, even more proceedings await! During their private meetings (which are usually held on Wednesdays and Fridays during the term), the justices review petitions, discuss oral arguments, make initial votes on cases they have heard, and conduct other court business. And these meetings are truly private: Not even the clerks are allowed in the room, with the most junior justice (currently Justice Ketanji Brown Jackson) acting as doorkeeper. The chief justice presides, sets the agenda, and leads discussions; when voting, though, the chief justice’s vote is worth the same as everyone else’s.

At the start of each term, the court also holds what is known as the “long conference,” a single large session at which the justices work through all the petitions that piled up over the summer recess (when the justices are, yes, on vacation). Filings ramp up from late spring into fall and generally peak between September and November. This peak helps explain why grant rates can be strong in early fall even as volume surges, since the court must stock its merits calendar relatively quickly at that point.

Although it is not a formal rule, granting certiorari traditionally requires the votes of four justices, colloquially known as the “rule of four.” If four justices agree to take the case, the court announces the grant as part of an order list released (depending on the time of year) either shortly after the conference on Friday or on the Monday after the conference. At that point, “the Clerk of the Court sets dates for briefing and then for oral argument” – and we’re off to the races.

But what makes a successful petition?

This question is not easy to answer, especially given that the justices do not announce specific criteria in advance nor normally explain their denials, and they have historically been reluctant to discuss the cert process in any detail. The most reliable path to success lies in a circuit split, or a disagreement among the federal courts of appeals about how to resolve the same legal question. For that reason, petitioners will often point to a supposed disagreement among lower courts on the issue that they are asking the justices to take up, and respondents will counter that no such conflict exists.

Circuit splits are far from the only factor the justices take into account when considering whether to grant cert, however. An analysis of over 12,300 paid petitions filed from 2017 through 2024 by SCOTUSblog contributor Adam Feldman found that several other factors consistently increase the probability of whether a case is granted, including when the case is relisted three or more times (that is, considered at several conferences without being granted or denied), when both parties are represented by seasoned Supreme Court practitioners, or when three or more cert-stage amicus briefs have been filed.

How we track this at SCOTUSblog

A related question we’re frequently asked is how we track all of this at SCOTUSblog.

The short answer: categorize, and triage.

The long(er) answer: We first narrow the docket by screening out petitions that are unlikely to receive consideration, such as petitions filed pro se or in forma pauperis, as the court rarely hears cases in which the petitioner represents himself or cannot pay the court-imposed fees (whether this is a good thing or not is an entirely separate question, for a separate column). We then review the questions presented by each remaining petition, taking into account the importance and potential impact of the questions presented by the petition, whether the courts of appeals appear to be divided on that question, whether the case appears to be a good candidate for the court’s review (for example, whether the case has any procedural issues or irregularities), and whether there are “friend of the court” briefs filed in support of the petition. The results of that filtering process are what you see in our Petitions We’re Watching section, a list of cases that, in our judgment, have at least a chance of progressing to the court’s oral argument docket.

But, at the end of the day, choosing which petitions will catch the court’s eye is more an art than a science, and can sometimes rest more on human psychology than any hard and fast rules. 

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