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The Certiorari Process and State Court Decisions

The full text of this Essay may be found by clicking on the PDF link to the left.



any have said much about the United States Supreme Court’s certiorari process. Repeat litigators, like seasoned fishing guides, know where and how to find the most promising lower court decisions for review by the Supreme Court.1×1. Cf. E. Barrett Prettyman, Jr., Opposing Certiorari in the United States Supreme Court, 61 Va. L. Rev. 197, 197 (1975). But few of these guides seem to explore one source, in truth fifty sources, of potential candidates for review: the decisions of our fifty state supreme courts. In recent decades, the United States Supreme Court has reviewed a materially higher percentage of decisions from the federal courts of appeals than decisions from the state supreme courts.2×2. See infra Part I, pp. 167–71. The gap in review rates has consequences for litigants, courts, and the law, and may be worth the attention of the Court and the Supreme Court bar.

Each year, the Court receives upwards of 7,000 requests for review.3×3. Frequently Asked Questions: General Information, Supreme Court of the U.S., https://www.supremecourt.gov/about/faq_general.aspx [https://perma.cc/4SL7-HZMX]. With high volume comes low success. Just one percent or so of the petitions takes the stage on the merits docket.4×4. Adam Feldman & Alexander Kappner, Finding Certainty in Cert: An Empirical Analysis of the Factors Involved in Supreme Court Certiorari Decisions from 2001–2015, 61 Vill. L. Rev. 795, 795 (2017). These dispiriting odds leave many practitioners in search of insights about what distinguishes the select few from the unselected many. No shortage of academic and empirical studies have scrutinized the process.5×5. See, e.g., H. W. Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court (1991); Saul Brenner, Granting Certiorari by the United States Supreme Court: An Overview of Social Science Studies, 92 Law Libr. J. 193, 198 (2000); Feldman & Kappner, supra note 4; Statistics, SCOTUSblog, http://www.scotusblog.com/statistics/ [https://perma.cc/7U9V-W9JU]. Through it all, few (if any) have noted the gap between state and federal court decisions on the Court’s docket.

This Essay sets forth statistics that show a material preference for review of federal court cases over state court cases during the last dozen years. It addresses several potential causes of the discrepancy. And it identifies several consequences of underreviewing state court cases, particularly criminal cases.

The full text of this Essay may be found by clicking on the PDF link below.

* Judge, United States Court of Appeals for the Sixth Circuit.

** J.D., Stanford Law School, 2016. Many thanks to Adam Feldman for providing the data that made this project possible. We would also like to thank Professor Jeffrey Fisher for his invaluable guidance on the early stages of this Essay, and the Harvard Law Review team for their immensely helpful feedback along the way.

Recommended Citation: Jeffrey S. Sutton & Brittany Jones, The Certiorari Process and State Court Decisions, 131 Harv. L. Rev. F. 167 (2018); https://harvardlawreview.org/2018/05/the-certiorari-process-and-state-court-decisions/.