When the U.S. Supreme Court reviews petitions for a writ of certiorari the writ is granted if four of the nine justices vote to take the case?

Unlike all of the lower federal courts, the U.S. Supreme Court alone gets to decide which cases it will hear. While almost 8,000 new cases are now filed with the U.S. Supreme Court every year, only about 80 are heard and decided by the Court.

It’s All About Certiorari

The Supreme Court will consider only cases for which at least four of the nine justices vote to grant a “writ of certiorari,” a decision by the Supreme Court to hear an appeal from a lower court.

“Certiorari” is a Latin word meaning “to inform.” In this context, a writ of certiorari informs a lower court of the Supreme Court’s intention to review one of its decisions.

People or entities wishing to appeal the ruling of a lower court file a “petition for writ of certiorari” with the Supreme Court. If at least four justices vote to do so, the writ of certiorari will be granted and the Supreme Court will hear the case.

If four justices do not vote to grant certiorari, the petition is denied, the case is not heard, and the decision of the lower court stands.

In general, the Supreme Court grants certiorari or “cert” agreeing to hear only those cases the justices consider important. Such cases often involve deep or controversial constitutional issues such as religion in public schools.

In addition to the about 80 cases that are given “plenary review,” meaning they are actually argued before the Supreme Court by attorneys, the Supreme Court also decides about 100 cases a year without plenary review.

In a case where certiorari is declined, the decision of the lower court is final.

Also, the Supreme Court receives over 1,200 applications for various types of judicial relief or opinion each year that can be acted upon by a single justice.

Challenges to the outcome of the 2020 presidential election generated several court cases, all, some, or none of which, could have been appealed to the U.S. Supreme Court. This drives home the importance of understanding that the Supreme Court does not have to accept any case. The common misconception that after a case is decided by a lower court, it winds its way through the system, and that when it arrives at the Supreme Court, the justices must hear the case is inaccurate and impractical. So it is theoretically and practically possible that any election-related case that rapidly climbs through the court system and ends up seeking review by the Supreme Court could end there, with a refusal by the court to hear the case.

Appeals From Courts of Appeals Decisions

By far the most common way cases reach the Supreme Court is as an appeal to a decision issued by one of the U.S. Courts of Appeal that sit below the Supreme Court.

The 94 federal judicial districts are divided into 12 regional circuits, each of which has a court of appeals. The appeals courts decide whether lower trial courts had applied the law correctly in their decisions.

Three judges sit on the appeals courts and no juries are used. Parties wishing to appeal a circuit court’s decision file a petition for writ of certiorari with the Supreme Court as described above.

Appeals From State Supreme Courts

A second less common way cases reach the U.S. Supreme Court is through an appeal to a decision by one of the state supreme courts.

Each of the 50 states has its own supreme court that acts as the authority on cases involving state laws. Not all states call their highest court the “Supreme Court.” For example, New York calls its highest court the New York Court of Appeals.

While it is rare for the U.S. Supreme Court to hear appeals to rulings by the state supreme courts dealing with issues of state law, the Supreme Court will hear cases in which the state supreme court’s ruling involves an interpretation or application of the U.S. Constitution.

The vast majority of cases in any given state end in its supreme court. Could an election-related case come to the U.S. Supreme Court from a state supreme court? Absolutely. In fact, this may be the most likely scenario. State supreme courts would be the ultimate decision-makers in any vote-counting process scenario within the state. Imagine a case that challenges the propriety of vote-counting procedures and policies within a state and begins to wind its way through state courts. Only in exceptional circumstances might the Supreme Court decide to review the decision of the state supreme court.

One way for the Supreme Court to ultimately decide a state voting issue would be to refuse to take up the case. The Supreme Court could reject the opportunity to review an ultimate decision of a state supreme court for a variety of reasons. The final result here would be that the decision of the state supreme court remains the final law of the land and the state’s election count, procedures, or processes would not be subject to federal review.

‘Original Jurisdiction’

The least likely way in which a case might be heard by the Supreme Court is for it to be considered under the Court’s "original jurisdiction."

Original jurisdiction cases are heard directly by the Supreme Court without going through the appeals courts process. Under Article III, Section II of the Constitution, the Supreme Court has original and exclusive jurisdiction over rare but important cases involving disputes between the states, and/or cases involving ambassadors and other public ministers.

Under federal law at 28 U.S.C. § 1251. Section 1251(a), no other federal court is allowed to hear such cases.

Typically, the Supreme Court considers no more than two cases a year under its original jurisdiction.

Most cases heard by the Supreme Court under its original jurisdiction involve property or boundary disputes between states. Two examples include Louisiana v. Mississippi and Nebraska v. Wyoming, both decided in 1995.

When and How Cases are Heard by the Court

Once the Supreme Court decides to hear a case, either through the appeals process or under its original jurisdiction, the process of deciding the constitutional issues involved begins.

By law, the Supreme Court’s term, the period of the year during which cases are heard and decided, begins on the first Monday in October and goes through the Sunday before the first Monday in October of the following year. Recesses are usually taken from late June or early July until the first Monday in October.

Lawyers and other interested parties are free to submit briefs and supporting materials concerning cases to the Supreme Court at any time. However, the Court only hears oral arguments on cases from October through April. Arguments are heard during the first two weeks of each month from October through December and during the last two weeks of each month from January through April. During each of its two-week sessions, the Court typically hears oral arguments only on Mondays, Tuesdays, and Wednesdays. 

While the Supreme Court has never allowed cameras in its courtroom, oral arguments are open to the public, and audiotapes of oral arguments and opinions are available to the public.

Beginning at 10 a.m., two cases are usually heard each day. During oral arguments, lawyers for each side are allowed approximately 30 minutes to make their best legal case to the justices. However, most of their time is spent answering questions from the justices. This is because the justices tend to view oral arguments only as a chance for lawyers to quickly summarize the merits of the case as they have already made in their lengthy written briefs. Instead, the justices see more value in having the lawyers respond to questions that they may have developed while reading their briefs.

Case Volume Has Soared

Today, the Supreme Court receives from 7,000 to 8,000 new petitions for writ of certiorari per year.

By comparison, in 1950, the Court received petitions for only 1,195 new cases, and even in 1975, only 3,940 petitions were filed. 

What is the rule of 4 in the Supreme Court?

How many votes does it take to grant certiorari?

How many cases are granted a petition for certiorari each year?

Why is there a rule of 4?