What Is a Petition for Writ of Certiorari?

A petition for a writ of certiorari is a formal request asking a higher court, almost always the U.S. Supreme Court, to review a lower court’s decision. The Court receives roughly 7,000 of these petitions each year and agrees to hear only about 100 to 150, putting the overall grant rate around 1 to 2 percent.¹ Because the Justices choose their own docket, whether a case gets in depends less on whether the lower court was wrong and more on whether the petition presents a legal question the Court considers worth deciding.

The word “certiorari” comes from Latin and roughly means “to be informed of.” When the Supreme Court issues the writ, it orders the lower court to send up the case records so the Justices can review the decision. This is different from an ordinary appeal. Most appellate courts have to hear the cases that reach them. Supreme Court review is almost entirely discretionary.

When You Can File a Cert Petition

You can file only after you have a final judgment from either a federal court of appeals or the highest state court that could hear your case. For federal cases, 28 U.S.C. § 1254 authorizes the Supreme Court to review decisions from the courts of appeals by writ of certiorari.² For state cases, 28 U.S.C. § 1257 allows review of final judgments from the highest state court in which a decision could be had, but only where the case raises a question about the U.S. Constitution, a federal statute, or a treaty.³

The “highest court in which a decision could be had” is usually the state supreme court, but not always. If a state supreme court refuses to hear your appeal, or if state procedural rules offer no further avenue for review, the intermediate appellate court’s decision may qualify as the final word. Whatever appellate options the state system provides must be exhausted before you turn to the U.S. Supreme Court.

Why the Court Grants Certiorari

The Court does not grant certiorari just because a lower court got something wrong. Rule 10 states that review is “not a matter of right, but of judicial discretion,” and a petition will be granted “only for compelling reasons.”⁴ The most common reasons fall into a few categories:

A circuit split, where two or more federal courts of appeals have reached conflicting decisions on the same legal issue and the law needs to apply uniformly across the country.
A conflict among state high courts, where a state court of last resort has decided a federal question in a way that contradicts another state high court or a federal court of appeals.
An unsettled federal question of importance that the Supreme Court has never addressed.
A lower court decision that conflicts with one of the Supreme Court’s own prior rulings.

Rule 10 also warns that a petition is “rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.”⁴ Arguing that the lower court weighed the evidence incorrectly or misread a case is unlikely to get the Court’s attention. The petition needs to frame the case as one that matters beyond the parties involved.

What the Petition Must Include

Rule 14 of the Supreme Court’s rules specifies what goes into a cert petition, and the Court takes the formatting requirements seriously. A sloppy or unclear filing can be denied on that basis alone. Each petition contains:

Questions presented: short, non-argumentative statements of the legal questions you want the Court to answer. This is the first thing the Justices and their clerks read, and it frames everything that follows.
Statement of the case: a summary of the relevant facts and the case’s procedural history in the lower courts. For state cases, this must explain when and how the federal questions were raised at each stage.
Reasons for granting the writ: your argument for why the case meets the standards in Rule 10, whether that means a circuit split, an unresolved federal question, or a conflict with Supreme Court precedent.
Appendix: copies of the lower court opinions, orders, and any other documents central to the case.

The petition must be “stated briefly and in plain terms” and cannot exceed 9,000 words.⁵ That count includes footnotes but excludes the questions presented, the tables of contents and authorities, and the appendix. The rules state that failure to present the case “with accuracy, brevity, and clarity” is itself “sufficient reason for the Court to deny a petition.”⁶

Filing Deadlines, Costs, and Format

The 90-Day Deadline

You have 90 days from the date the lower court enters its judgment to file your petition with the Clerk of the Supreme Court.⁷ The clock starts from the date of the judgment, not from the date the court issues its mandate. If any party files a timely petition for rehearing in the lower court, the 90-day window resets and begins running again from the date the rehearing is denied or, if rehearing is granted, from the entry of the new judgment.

For good cause, a Justice can extend the deadline by up to 60 days. The extension request must reach the Clerk at least 10 days before the petition would otherwise be due, except in extraordinary circumstances.⁷ Missing the deadline without an extension ends your right to seek review.

Filing Fee and In Forma Pauperis

The docketing fee is $300.⁸ If you cannot afford it, you can ask to proceed in forma pauperis (IFP), which waives the cost. Under 28 U.S.C. § 1915, any federal court can authorize a case to proceed without prepayment of fees if the person submits an affidavit showing inability to pay.⁹ IFP petitioners also face reduced copying requirements. They file an original plus ten copies instead of the usual forty, and incarcerated petitioners need only file the original.

Physical Format

Paid petitions must be printed in booklet format: 6⅛-by-9¼-inch pages, Century family 12-point font, printed on both sides, and bound along the left margin. The cover must be white 65-pound paper, and you must file 40 copies of the booklet plus one unbound copy on standard letter-sized paper.⁵ These requirements catch many first-time filers off guard, and commercial Supreme Court printing services exist for exactly this reason.

How the Court Decides Whether to Hear Your Case

Once the petition and any responses are filed, the Clerk distributes the materials to the Justices on a set schedule. If a brief in opposition is filed, the Clerk waits at least 14 days after that filing before distributing, giving the petitioner a window to file a short reply.¹⁰

Most Justices participate in the “cert pool,” a system where law clerks from the participating chambers divide the incoming petitions among themselves. Each clerk reads assigned petitions, writes a memo summarizing the case, and recommends whether to grant or deny review.¹¹ The memos circulate to all participating Justices.

The Justices then discuss petitions during their private conference, and the “Rule of Four” governs the vote: at least four of the nine Justices must vote to hear the case for certiorari to be granted.¹¹ The Rule of Four is not written in any statute. It is an internal practice the Court has followed for over a century, and its effect is that even a minority of Justices can bring a case forward for full review.

What Happens After the Court Decides

A cert petition has three possible outcomes, and they carry very different consequences.

Certiorari Granted

If the Court grants certiorari, the case moves to full briefing and oral argument. Both sides submit detailed written briefs, and the Justices hear oral argument, usually 30 minutes per side, before conferring and issuing a written opinion.¹² For paid petitions, the grant rate runs somewhat higher than the overall figure, historically in the range of 3 to 5 percent.

Certiorari Denied

When the Court denies certiorari, the lower court’s decision stands as the final ruling. This is how the vast majority of petitions end. A denial does not mean the Supreme Court agrees with the lower court. It sets no precedent and carries no legal weight beyond that single case. The Court itself has said that denying cert “imports no expression of opinion upon the merits.” Justices decline cases for many reasons unrelated to whether the lower court was right, including poor timing, an incomplete factual record, or a view that the issue needs more development in the lower courts first.

GVR Orders

A less common but important outcome is a GVR order, which stands for “grant, vacate, and remand.” The Court grants the petition, immediately vacates the lower court’s decision, and sends the case back, all without hearing oral argument or issuing an opinion on the merits. The Court typically issues a GVR when something has changed since the lower court ruled, such as a new Supreme Court decision on a related legal question. The instruction to the lower court is essentially to reconsider the decision in light of that new development.

1
United States Courts. About the Supreme Court
2
Office of the Law Revision Counsel. 28 US Code 1254 – Courts of Appeals; Certiorari; Certified Questions
3
Office of the Law Revision Counsel. 28 USC 1257 – State Courts; Certiorari
4
Legal Information Institute. Supreme Court Rule 10 – Considerations Governing Review on Writ of Certiorari
5
Legal Information Institute. Supreme Court Rule 33 – Document Preparation: Booklet Format; 8 1/2- by 11-Inch Paper Format
6
Legal Information Institute. Supreme Court Rule 14 – Content of a Petition for a Writ of Certiorari
7
Legal Information Institute. Supreme Court Rule 13 – Review on Certiorari: Time for Petitioning
8
Legal Information Institute. Supreme Court Rule 38 – Fees
9
Office of the Law Revision Counsel. 28 USC 1915 – Proceedings In Forma Pauperis
10
Supreme Court of the United States. Case Distribution Schedule
11
United States Courts. Supreme Court Procedures
12
Supreme Court of the United States. The Court and Its Procedures