Appeal to US Supreme Court

Cite this article as: Jason Mance Gordon, "Appeal to US Supreme Court," in The Business Professor, updated January 3, 2015, last accessed March 29, 2020,
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Appeal to US Supreme Court
How do you Appeal a case to the US Supreme Court? Also, Writ of Certiorari

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How do cases arrive before the US Supreme Court?

The Supreme Court lays out procedures by which cases arrive before it. The US Supreme Court accepts cases via two primary methods, the procedures for which are codified at 28 USC 2101. The first method is the Writ of Certiorari. This is a written demand issued by the court for the case to be transferred to the court for review. Procedurally, 4 of 9 Justices must agree to accept the writ and review the case. The second method is pursuant to appeal by any party to a case. Generally, the court will only accept appeals of issues that have important and broad impact. Further, the issues on appeal generally involve issues of constitutionality. The Supreme Court may use this authority to review decisions by the highest court in any state or by any federal court. As the highest appellate court, decisions by US Supreme Court are final. That is, its decisions cannot be appealed further. Also, its decisions provide precedent for all inferior courts. This means that all lower courts (state and federal) must follow, interpret, and apply the law consistently with the interpretation of the Supreme Court. The court’s interpretation of the law actually becomes part of the law and forms the common law surrounding the statute.

Discussion: How do you feel about the US Supreme Court’s ability to demand that any appellate case be transferred to the court for review? Is there a good argument that appeals to the Supreme Court should only happen pursuant to petition of the parties?

Discussion Input

  • One might argue that the power of SCOTUS to direct cases before it should always be available, as it is consistent with its grant of “original jurisdiction”. Others might argue that it should only receive cases that are appealed by the parties. This would effectively prevent the court from taking on cases for activist purposes. Judicial activists would argue that it is imperative that the court have this power to interpret legal issues of great importance.

Practice Question: Gerard, a citizen of State A, does not agree with a state statute allowing state agencies to ask employees about political affiliation as part of a job application. He believes that employers ask political affiliation questions as a subtext for discriminating based upon social belief and the expression of those beliefs. He files a federal action in the US District Court challenging the statute. The court defers action on the case and recommends immediate appeal based upon questions of constitutionality of the statute. At this point, Gerard is confident that his view will prevail in the Circuit Court, because a separate federal circuit court recently ruled on a similar issue in a way that is favorable to or recognizes Gerard’s argument. Surprisingly, the local federal circuit rejects Gerard’s arguments and holds the statute to be constitutional. Gerard immediately requests appeal to the US Supreme Court. What factors and procedures will affect the Supreme Court decision of whether or not to accept the case?

Proposed Answer

  • The court will only take the case if 4 of 9 justices agree. Further, the court will make the determination of whether this issue is ripe for review. The fact that there are now differing ruling on the same issue in multiple circuits leads one to believe SCOTUS may entertain the case.

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