A writ of certiorari is a formal order from a higher court telling a lower court to send up the record of a case so the higher court can review it. In the United States, it is the main way the Supreme Court decides which cases to hear, and review is discretionary rather than automatic. The Court receives roughly 7,000 to 8,000 petitions each term and accepts fewer than 1%, so how the process works, what the petition must contain, and what the justices look for all shape whether a case ever gets heard.
What the Writ Does
The term comes from Latin, roughly meaning “to be more fully informed.” In practice, a grant of certiorari (often shortened to “cert”) orders the lower court to deliver the full record so the higher court can examine the legal questions decided below. Unlike an appeal of right, where a court must hear a timely appeal, certiorari is entirely discretionary. The higher court chooses whether the questions are important enough to warrant its attention.
That discretionary character is what separates certiorari from most appellate review. Federal courts of appeals generally must hear timely appeals from district courts. The Supreme Court operates differently, using certiorari as a gatekeeping tool to select only the disputes with the broadest significance for the country’s legal system.
Not every Supreme Court case arrives through certiorari. The Constitution gives the Court “original jurisdiction” over a narrow set of disputes, primarily cases involving ambassadors, foreign officials, or lawsuits between states. Those cases come to the Court directly. Everything else reaches it through certiorari or a similar appellate path.
Who Can Seek Certiorari and From What Courts
Two federal statutes define when the Supreme Court can grant certiorari. Under 28 U.S.C. § 1254, the Court can review any civil or criminal case decided by a federal court of appeals, either before or after that court issues its final judgment.1Office of the Law Revision Counsel. 28 U.S. Code 1254 – Courts of Appeals; Certiorari; Certified Questions Any party to the case, whether they won or lost below, can file the petition.
Under 28 U.S.C. § 1257, the Court can also review final decisions from state courts, but only when a federal question is involved. The case must come from the highest state court where a decision could be had, and the dispute must involve the validity of a federal statute or treaty, the constitutionality of a state law, or a right claimed under the U.S. Constitution or federal law.2Office of the Law Revision Counsel. 28 U.S. Code 1257 – State Courts; Certiorari The Court will not use certiorari to review a state court’s interpretation of its own state law.
What the Court Looks For
Supreme Court Rule 10 lists the reasons that make the Court more likely to take a case, while stressing that no formula guarantees review.3Legal Information Institute. Rule 10 – Considerations Governing Review on Writ of Certiorari The Court generally looks for three situations:
- Circuit splits, where two or more federal courts of appeals have reached opposite conclusions on the same legal issue, producing different law depending on where a person lives.
- Conflicts between state and federal courts, where a state court of last resort has decided a federal question in a way that clashes with a federal appellate court or with another state’s highest court.
- Unsettled federal law, where a court has decided an important federal question that the Supreme Court has never addressed and that needs a definitive national answer.
What is not on that list matters just as much: correcting a lower court’s factual mistakes. The Court is not looking for cases where the result was merely wrong. It is looking for cases where the legal question itself matters beyond the parties involved. The goal is uniformity across the federal system, not individual error correction.
What a Petition Must Include
Supreme Court Rule 14 sets out the required structure for every certiorari petition.4Cornell Law Institute. Rule 14 – Content of a Petition for a Writ of Certiorari In order, the petition must contain:
- The questions presented. The first page after the cover lists the specific legal questions you want the Court to resolve. They should be short, clear, and non-argumentative, and nothing else can appear on that page.
- A list of parties, covering every party in the lower court proceeding, unless the case caption already names them all.
- A table of contents and table of authorities, required if the petition exceeds 1,500 words in booklet format or five pages in letter-size format.
- An appendix with the full text of all lower court opinions, orders, and findings related to the case.
Accuracy carries weight throughout. The justices and their law clerks rely on the petition’s description of the procedural history and citations to the record to assess quickly whether the case warrants attention. Errors or omissions can weaken even a strong legal argument.
Deadline, Fee, and Format
When to File
Under Rule 13, you have 90 days after the lower court enters judgment to file your petition with the Clerk of the Supreme Court. If you first sought discretionary review from a state’s highest court and were denied, the 90-day clock starts from the date of that denial. A Justice can extend the deadline by up to 60 days for good cause, but you must apply at least 10 days before it expires and give specific reasons for needing more time.5Legal Information Institute. Rule 13 – Review on Certiorari: Time for Petitioning
Filing Fee
The docket fee for a certiorari petition is $300.6Legal Information Institute. Rule 38 – Fees If you cannot afford it, you can file a motion to proceed in forma pauperis under Rule 39, which waives the cost. Inmates not represented by counsel who qualify as indigent have further streamlined requirements.
Copies and Format
Paid petitions must follow the booklet format described in Rule 33.1, a specialized printing format requiring Century-family typeface in 12-point type, opaque paper sized 6⅛ by 9¼ inches, and firm binding along the left margin.7Legal Information Institute. Rule 33 – Document Preparation: Booklet Format; 8 1/2- by 11-Inch Paper Format Petitioners must file 40 printed copies, plus one unbound copy on standard letter-size paper. Specialized Supreme Court printers typically handle this work, and it can be expensive. In forma pauperis filers instead submit an original and 10 copies on regular letter-size paper and skip the booklet format entirely.8Legal Information Institute. Rule 12 – Review on Certiorari: How Sought; Parties
Paper remains the official form of filing. Parties represented by counsel must also submit electronic versions through the Court’s electronic filing system.9Supreme Court of the United States. Electronic Filing
Service on Other Parties
Rule 29 requires you to serve copies of your petition on every opposing party at or before you file with the Court. Service can be done in person, by mail, or through a commercial carrier that delivers within three calendar days. You must also file proof of service, a separate document listing the names, addresses, and phone numbers of all counsel served.10Cornell Law Institute. Rule 29 – Filing and Service of Documents; Special Notifications; Corporate Disclosure Statement
Responses and Amicus Briefs
Once a petition is docketed, the opposing party (the respondent) may file a brief in opposition but is not required to. The deadline is 30 days after the case is placed on the docket, though extensions are available. In capital cases, or when the Court specifically orders one, the brief in opposition is mandatory. If the respondent believes the petition misstates any facts or law, the brief in opposition is the place to raise that objection. Waiting until later may waive the issue.11Legal Information Institute. Rule 15 – Briefs in Opposition; Reply Briefs; Supplemental Briefs
The petitioner can then file a reply brief addressing new points in the opposition. The Court will not delay its consideration of the petition to wait for a reply, so timing matters.
Outside parties, including organizations, interest groups, and other government bodies, can file amicus curiae (“friend of the court”) briefs at the certiorari stage to urge the Court to grant or deny review. If all parties consent, the amicus brief can be filed within the same deadline as the brief in opposition. If any party withholds consent, the would-be amicus must file a motion asking the Court for permission, which the Court disfavors.12Legal Information Institute. Rule 37 – Brief for an Amicus Curiae The volume of amicus briefs for or against a petition can signal how broadly important a legal question is, though the Court is not bound by that signal.
How the Court Decides: The Rule of Four
The Supreme Court uses an informal practice called the Rule of Four to decide which petitions to accept. At least four of the nine justices must vote in favor of hearing a case for certiorari to be granted. The threshold is not written in any statute or rule. It is a longstanding internal custom.
The work runs through the Court’s private conferences. Before each conference, law clerks from multiple chambers participate in a “cert pool,” reviewing the thousands of petitions filed each term and writing memos summarizing the legal issues and recommending whether the Court should take the case. Petitions flagged as potentially worthy of review go on a “discuss list” for the justices to consider together. Petitions that no justice places on the discuss list are automatically denied without discussion.
If four or more justices vote to hear a case, the Court issues an order granting certiorari. Otherwise, cert is denied. A denial says nothing about whether the justices think the lower court got it right. It means only that fewer than four justices believed the case warranted the Court’s limited time.
What Happens After the Ruling
When the Court agrees to hear a case, briefing on the merits begins and the Court schedules oral argument. Deadlines for the merits briefs are set by Rule 25.13Legal Information Institute. Rule 25 – Briefs on the Merits: Number of Copies and Time to File
When cert is denied, the lower court’s decision stands and remains binding law within that court’s jurisdiction. The Court has said repeatedly that denial “imports no expression of opinion upon the merits.” There is no further appeal from a denial of certiorari.
Sometimes the Court takes a middle path. In a “GVR” order, the Court grants certiorari, vacates the lower court’s decision, and sends the case back, all without full briefing or oral argument. GVRs typically follow a recent Supreme Court decision in a related case that may change the outcome, and they let the Court direct lower courts to reconsider in light of new legal guidance.
Getting a Stay While the Petition Is Pending
Filing a certiorari petition does not automatically pause the lower court’s judgment. If you need to prevent enforcement of that judgment while the Court considers your petition, for example to stop a sentence from being carried out or an injunction from taking effect, you must separately request a stay.
Under Rule 23, a stay application goes to an individual Justice. It must explain why you could not get a stay from the lower courts and give specific reasons why one is justified. You need to attach copies of the lower court’s order, opinion, and any ruling on your previous stay request. The Court will not consider a stay application except in extraordinary circumstances unless you first tried and failed to get a stay below.14Legal Information Institute. Rule 23 – Stays
A Note on State Court Certiorari
The writ is not exclusive to the U.S. Supreme Court. Many state supreme courts use a similar process for discretionary review of decisions from intermediate appellate courts. The terminology varies. Some states call it a “petition for review” or “application for leave to appeal” rather than certiorari, but the core concept is the same: the state’s highest court chooses which cases to hear rather than being obligated to take every appeal. State supreme courts generally grant review at a higher rate than the U.S. Supreme Court, though most still accept only a small fraction of the petitions filed. Filing fees vary widely by jurisdiction. If you are seeking review in a state court, check that court’s specific rules for deadlines, format, and fees, because they differ significantly from the federal process described above.