Four Votes to Hear a Case, Five to Win It, Inside the Supreme Court's Docket

Here is a number to hold onto: the Supreme Court of the United States is asked to hear thousands of cases every term, and it agrees to hear a few dozen. Picture the busiest customer-service desk in the world, staffed by nine people who may answer "no" without explaining a thing. That desk is the most powerful in American government, and most citizens have never seen how it decides which door to open.

The thesis of this post is that the Court's docket, meaning the gatekeeping that decides which cases it will hear, shapes American law at least as much as the opinions it issues. Most of the work of the Court is saying no. The few times it says yes are rare, deliberate, and governed by a short set of rules and customs. Learn those and you will understand why some fights reach the Court and others, equally important to the people involved, never do.

Definitions first

Appellate jurisdiction is the power to review the decision of a lower court. The Constitution, in Article III, Section 2, gives the Supreme Court original jurisdiction in a narrow set of cases (those affecting ambassadors and other public ministers and consuls, and those in which a state is a party) and appellate jurisdiction in the rest, "with such Exceptions, and under such Regulations as the Congress shall make." We look at that last clause in The Exceptions Clause Gives Congress a Power Over the Courts It Rarely Uses.

A petition for a writ of certiorari, usually shortened to "cert petition," is a request that the Court order a lower court to send up its record so the Court can review the decision. The word is Latin for "to be more fully informed." Granting cert means agreeing to hear the case. Denying it leaves the lower court's decision standing.

The rule of four is the custom that four of the nine justices must vote to grant a petition. It is a practice of the Court, not a rule written into the Constitution or a statute.

A merits case is one the Court has agreed to hear and decide after full briefing and argument.

How the Court came to choose

For most of its history the Court had little choice about what to hear. Congress gave litigants a right to appeal in many kinds of cases, and the justices were buried in work. The Judiciary Act of 1925, sometimes called the Judges' Bill because the Court's own members drafted much of it and lobbied for it, shifted most of the docket to certiorari, which is discretionary. Congress went further in 1988, in the Supreme Court Case Selections Act, which ended most of the remaining mandatory appeals, including appeals as of right from state courts.

The result is the system we have now. Almost every case reaches the Court by a petition that the justices are free to turn down. That freedom is a form of power, and it should be exercised thoughtfully, because every grant sends a signal that the Court thinks a legal question is important and unsettled.

The argument in five premises

One. The Court cannot hear everything, and should not try. Nine justices, working a term that runs from the first Monday in October, cannot decide every dispute. The job of a court of last resort is to say what the law is when it truly needs saying, which means resolving real conflicts and weighty questions.

Two. Rule 10 tells the parties what the Court is looking for, and says so plainly. The Court's own rule states that a petition is granted only for "compelling reasons," and it lists the main ones.

Three. The most common compelling reason is a circuit split. When two federal courts of appeals reach opposite answers to the same legal question, the law means different things in different parts of the country, and only the Supreme Court can unify it.

Four. A grant is a minority power. Four justices, a minority of the Court, can put a case on the calendar. That protects the Court against a majority that would prefer to avoid a hard question.

Five. A denial means very little. The most misunderstood feature of the docket is that a refusal to hear a case says nothing about whether the lower court was right.

Let us go through them.

Rule 10: what counts as a compelling reason

Supreme Court Rule 10 is short and worth reading. It says that review on a writ of certiorari is not a matter of right but of judicial discretion, and that a petition will be granted only for compelling reasons. It then gives examples, which it calls neither controlling nor fully measuring the Court's discretion. In plain terms they are:

• A conflict among the federal courts of appeals. One circuit court has decided an important federal question in a way that conflicts with another circuit's decision on the same matter.
• A conflict between state courts of last resort, or between such a court and a federal appeals court, on an important federal question.
• A departure from the accepted and usual course of judicial proceedings by a lower court, or a sanction of such a departure, calling for the Supreme Court's supervision.
• An important question of federal law that has not been, but should be, settled by the Court, or that conflicts with the Court's own decisions.

The rule adds that a petition asking only for correction of a misapplied rule or erroneous factual findings is rarely granted. This surprises people. The Court is not an extra layer of appeal for anyone who thinks the last court was wrong. It is a court that chooses cases of national consequence.

Circuit splits

The thirteen federal courts of appeals (twelve regional circuits plus the Federal Circuit) sit in different parts of the country, and they sometimes disagree. When they do, the same federal statute may be enforced one way in Texas and another way in California. Everyone who studies the Court knows that a clear, well-developed circuit split is the best predictor of a grant. The justices dislike leaving federal law different in different places.

That is part of why a split matters more than the quality of the underlying argument. A single decision, however mistaken, may be left to stand if no other court has taken the opposite view. A real conflict almost forces the Court's hand.

The cert pool

How do nine justices and their clerks read thousands of petitions? Since 1972, most of the justices have participated in the cert pool, an arrangement in which the petitions are divided among the participating chambers, each petition is reviewed by a single law clerk, and that clerk writes a short memo recommending whether to grant. The memo goes to every justice in the pool.

Critics, including some on the Court, have worried that this gives too much influence to a single twenty-something clerk and that it produces a built-in bias toward denying review. Defenders say that without it the justices could not read the volume of filings they receive. A few justices have chosen over the years to opt out and have their own clerks review petitions. That is a legitimate management decision, and it is the kind of detail that shows how much of the Court's work is organizational, not dramatic.

The rule of four, and why it matters

The custom that four votes suffice to grant cert is one of the quiet protections of minority views on the Court. Suppose a majority of five would rather not touch a divisive issue. The other four can still force the question onto the calendar, so long as they hold together.

Think about what that means. The most basic act of the Court, deciding what it will decide, is not controlled by a bare majority. It is shared. A faction too small to win a case can still force its day in court. That is a restraint on the majority's ability to dodge, and Americans ought to like it, whatever the politics of the justices involved.

There is a fine point. A vote to grant is not a vote on the merits. A justice may vote to grant a case in order to affirm. In some cases a majority will vote to hear a case that four others think was decided correctly below, so that the Court can say so.

Relists

Before it grants a petition, the Court may "relist" it, meaning it comes up for discussion at conference again and again, sometimes over several weeks. A relist often signals that a justice is writing a dissent from a denial or that the Court is considering a summary reversal. Court watchers pay close attention to relists, because a petition that is relisted several times is much more likely to be granted or to produce a written opinion than one that is denied on the first pass.

Dismissed as improvidently granted

Occasionally, after the Court has agreed to hear a case and heard argument, it concludes that the case was a mistake, that the issue is not cleanly presented or that some jurisdictional problem emerged. The Court then dismisses the writ "as improvidently granted," abbreviated DIG. This is rare, and it shows that granting a case is a provisional judgment.

The role of the Solicitor General

No litigant appears before the Court more often than the federal government, and the Solicitor General, who is appointed by the President and handles Supreme Court litigation for the executive branch, has a unique status. The position is sometimes called the "tenth justice," a nickname that reflects both the SG's influence and the trust the justices place in the office.

The Solicitor General's influence on the docket works in two ways.

First, when the federal government asks for cert, the Court listens. The SG files petitions only in cases the office considers important and screens out many requests from other agencies, which gives the filings credibility. The government's petitions are granted at a much higher rate than ordinary paid petitions.

Second, the Court may ask for the government's view. In a case where the United States is not a party but where federal law or policy might be affected, the Court sometimes issues what is called a "CVSG," an invitation to the Solicitor General to file a brief expressing the views of the United States. The Court usually follows the Solicitor General's recommendation. Practitioners wait on a CVSG like farmers waiting on weather.

This power is worth noting because it is also a form of executive influence over the judiciary's agenda. The Court is not bound to follow it, but the practice shows how much of the docket depends on custom and mutual trust, not formal rules.

Amicus briefs at the cert stage

A friend-of-the-court brief is usually filed on the merits, but under Supreme Court Rule 37 an amicus can also file at the petition stage. The point is to tell the justices that a case matters beyond the parties, that many people or states are affected and that the question recurs.

A cert-stage amicus can be very effective when it supplies something the Court cannot get from the parties: the breadth of the problem. Twenty states joining a brief saying a federal rule is causing practical difficulty is evidence of a compelling reason. It is also one reason that organized interests invest in the pre-argument phase. The Court is told, in effect, "This is not just one dispute."

Why denial of cert sets no precedent

This is the point most often misunderstood in the press, so let us be exact. When the Court denies a petition, it usually says nothing. The order is a line on a list.

The Court addressed what that means in Maryland v. Baltimore Radio Show, Inc. (1950). Justice Frankfurter explained in an opinion respecting the denial that a denial of certiorari imports no expression of opinion on the merits of the case. There are many reasons the Court might say no: the case is a poor vehicle, the issue needs more time in the lower courts, a jurisdictional problem looms, or the justices simply believe the question is not yet ripe.

So when a headline says "Supreme Court upholds ruling" because it denied cert, the headline is wrong. The Court did not uphold anything. It declined to look. The lower court's decision stands as the law of that circuit, but not as the Supreme Court's view. For how press framing can mislead, see How the Press Covers Supreme Court Decisions, and What the Stories Leave Out.

The strongest objection, answered

A critic might say: "A court that picks its own cases has too much power. It can avoid hard questions for years, or seize issues the political branches have not resolved. Where is the accountability?"

That is a fair challenge, and four points answer it.

One. The power is bounded by Congress. The Constitution lets Congress set the Court's appellate jurisdiction by statute. It was Congress that chose to make the docket discretionary in 1925. If Congress wanted a different arrangement, it could enact one.

Two. The reasons are published. Rule 10 is public. Anyone can read it and see why the Court takes certain cases and declines others. The justices sometimes dissent from denials, writing opinions that explain why they would have taken the case. Those writings are a public record of the disagreements within the Court.

Three. The alternative is worse. A Court with no discretion would hear every appeal and decide nothing well. The common-law tradition and the Founders' own habits favor courts that decide cases and controversies actually before them, and discretion helps the Court keep to that function.

Four. Restraint in the docket is itself a conservative value. A Court that picks only the cases it must, resolving splits and enforcing the Constitution's meaning, is less likely to wander into policy. The conservative critique is not that the Court has discretion; it is that the Court sometimes uses it to take cases that invite policy-making, instead of staying with the hard law the lower courts split over.

What this means for a citizen

Understanding the docket helps you read the news. When you hear that "the Supreme Court will decide" a question, ask three things. What circuit split or compelling reason made the case suitable? Who filed amicus briefs, and does that show how widespread the problem is? And what is the vehicle, meaning the specific facts, that the Court chose to use? A good case on bad facts will often be denied while a worse-sounding case on clean facts is granted, because the justices care about how well a case presents the question.

It also helps to see what the Court does between cases. As The Emergency Docket Explained, and Why Both Parties Complain About It describes, a good deal of consequential work now happens through emergency applications, which is a different path to the Court. And once the argument is over, the justices meet privately to vote, a process we describe in What Happens in the Supreme Court's Conference Room After Oral Argument. For how to listen to an argument, How to Follow a Supreme Court Oral Argument, From the Line to the Transcript is a practical guide.

Finally, remember that the Founders designed the judiciary to be, in Hamilton's phrase in Federalist 78, the least dangerous branch, with neither force nor will but merely judgment. A court that exercises its discretion on the docket carefully is living out that description. A court that does not, invites trouble. Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right? asks whether Hamilton was right.

The case in brief

1. The Court hears only a few dozen cases from thousands of petitions, and the gatekeeping rules shape American law as much as the opinions.
2. Rule 10 grants review only for compelling reasons, chiefly circuit splits, state-court conflicts, departures from usual proceedings and unsettled federal questions.
3. Four votes grant a case and five decide it, a custom that protects a minority of the Court from a majority that would avoid a hard question.
4. The cert pool, relists, the Solicitor General and cert-stage amicus briefs all influence the choice, and a denial of cert sets no precedent, as Justice Frankfurter explained in 1950.
5. The discretion is bounded by Congress, published in Rule 10, and best used with restraint.

What you can do: read Rule 10 on the Court's website this week, then pick one pending petition from a news story and ask whether it fits any of the four reasons the rule lists.