By: James G. Apple, Editor-in-Chief, International
Judicial Monitor
During my frequent briefings at the International Judicial
Academy to judges, jurists and other rule of law officials from other countries
about the United States legal system, I invariably discuss, in the part dealing
with the structure of the federal courts, the Supreme Court of the United
States, its organization and how it operates. In commenting on the jurisdiction
of the Court, I emphasize that there is no appeal as a matter of right (with a
few minor exceptions) from the lower courts to the Supreme Court. The
jurisdiction of the Court is basically one of discretionary jurisdiction, that
is, the Court decides for itself what cases it will hear. The Court
has jurisdiction over cases from the circuit courts of appeal in the federal
system, and from the highest courts of the states in state court systems, where
there is a “federal question” involved, that is, a question relating to the
applicability of a provision of the U.S. Constitution or a federal statute or
federal regulation.
The means by which a losing litigant in one of those courts
can seek review by the Supreme Court is known as a “petition for writ of certiorari.”
The losing litigant files in the clerk’s office such a petition, which includes
a request that a writ of certiorari be issued, the reasons for the
request, a statement of the facts of the case, the issues to be reviewed, and
the applicable law. The Supreme Court then decides (by a vote of at least four
of the nine justices) whether the request for the writ should be granted.
Certiorari is not a new legal term. Its history goes
back to ancient times – it was apparently used to describe a procedure in Roman
law. The word is a Latin infinitive which means literally “to inform, apprise,
show.” When the Supreme Court issues a writ of certiorari it is saying
to the lower court “We wish to be informed (about the case decided in the lower
court).” The granting of a petition for the writ causes the clerk in the lower
court to prepare the record of the case for filing in the Supreme Court and
ultimately decision by the nine justices.
The explanation of this procedure in my presentation rarely
draws any comment by the listeners; it is what follows that sometimes results in
resentment or even anger. I advise my audience that the Supreme Court each year
receives about 8,000 petitions for a writ of certiorari. Of that number
the Court now accepts only about 70 to 80 cases for review. Many of the
visiting judges are, first, surprised at the low number of cases accepted for
review. Then they begin to question the reasons for such a low number. Why,
they ask, does the Supreme Court not accept a great many of these petitions? The
U.S. is a democracy, and all of its courts should be made available to all
citizens, especially the Supreme Court, they argue.
In one memorable occasion, I invited a journalist who
regularly covers the Supreme Court to make a presentation to a group of judges
from Kazakhstan. She included in her presentation a description of the
methodology of the Court in accepting and hearing cases. She mentioned the
above statistics. When she finished her presentation the visiting judges bombarded
her with angry questions about the unavailability of the Court to all citizens.
They surrounded her and with their intense interrogation, drove her back
against the door to the courtroom where this particular part of the seminar was
being conducted. (I rescued her and was able to arrange for her safe departure
from the courtroom).
This event made a strong impression on me, to such an extent
that I decided to include in my presentations about the Supreme Court an
explanation of why it accepts for review only the small number of cases
mentioned above. I was able to work out five very valid reasons why our Supreme
Court acts as it does. And those reasons are worthy of passing on to judges and
jurists from other countries, because I believe that the certiorari system is a very effective tool for the Supreme Court (and for some of the
highest courts in the individual states in the U.S.) to regulate the flow of its
business and maintain its status and influence.
The first reason why the Court accepts such few cases for
review is that many of the petitions that are filed involve frivolous
matters. By statute those persons who are imprisoned in federal and state
prisons can petition the Court for review and reversal of their convictions on
the grounds that their federal constitutional rights have been violated and
they are entitled to be released from incarceration, or that a new trial be
ordered. Their petitions can be filed with the Clerk of the Court without any
payment of fees, because they are proceeding in forma pauperis (as a
pauper, or poor person). Many of the prisoner petitions are almost always based
on frivolous allegations, such as the prison food being inadequate, or that the
prison warden does not allow enough time for exercise. Such petitions are
routinely denied on the basis that they do not present justiciable issues
worthy of review by the Supreme Court. (However the Court does sometimes grant
a prison’s petition-the famous case of Gideon vs. Wainwright (1963)
established the right to court appointed counsel for a poor person accused of a
crime and unable to afford a lawyer).
The second reason is somewhat related to the first – many
petitions are denied because they essentially involve questions of law relating
to alleged errors of the trial court during or before the trial. There is no need
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