The Appeals Process

Chapter 13 – Section 5

The Appeals Process

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     Despite cinematic promises to sue someone “all the way to the Supreme Court,” there is no right to appeal in the United States. The formal appeal process begins when the losing party to a case requests or “petitions” a writ of certiorariwhich is Latin for “to be informed of” to an appellate court. If the appellate court feels that there was an error in the way the decision was reached or the way the law was applied, they may issue the writ of certiorari or “cert” and request the records from the lower court. If the appellate court denies the petition for a writ of certiorari, the lower court’s decision stands.

     In turn, appeals may be made from the appellate courts to the Supreme Court. The Supreme Court may also receive appeals from state courts, but only if an issue of federal law is involved. The Supreme Court receives thousands of “cert petitions” every year of which it will only hear about 75-100. The decision to hear cases is at the discretion of the Supreme Court. The Supreme Court only issues a writ of certiorari if the case impacts many individuals, raises important Constitutional issues, or is needed to resolve conflicting decisions between some combination of circuit courts, state courts of last appeal, or the Supreme Court. The Court will review cert petitions if three of the Justices feel the case is of significant public interest or if a significant question of federal law is raised. The Supreme Court agrees to hear cases if requested to do so by four of the Justices; this is known as “the rule of four.”

     The only other party who has any sway in this process is the federal Solicitor General who requests that the Supreme Court hear cases important to the federal government. The Supreme Court has traditionally agreed to hear about three-quarters of the cases requested by the Solicitor General. Because of the massive amount of petitions for a writ of certiorari which are received each year, much of the process of winnowing down the requests is done by law clerks. Clerks to Supreme Court Justices are typically the top graduates from the nation’s most prestigious law schools. They are responsible for carrying out much of the research for the Justices. Each justice typically has 3-5 clerks and it is, of course, considered an incredible honor to be accepted as a Supreme Court clerk.

     The federal courts have, over time, developed certain criteria to be used in deciding which cases within their jurisdiction they will hear. The first of these is that the case must by an actual, not a hypothetical, controversy. This means that cases must be between two actual adversarial parties. Further, courts will not offer advisory opinions nor will they consider the constitutionality of a law until it is actually applied. Second, parties to a case must have standing. That means that they must have a personal stake in the issue at hand or have suffered specific injury to be able to bring a case before the court. In the 1960s and 1970s the Supreme Court expanded the idea of standing to allow public interest groups to challenge the activities of federal agencies. For example, if the activities of a federal agency have adverse consequences to the environment, interest groups could challenge those activities under the National Environmental Policy Act. Further, the court allows cases to be brought before the court on behalf of broad categories or classes of individuals with common interests in “class action” suits. The third criterion in deciding which cases the courts will hear is mootness. If the relevant problem has changed or already been resolved by some other means, the case is deemed to be moot and will not be heard. This rule has also been relaxed, particularly in cases where the situation is likely to come up again. For instance, the Supreme Court agreed to hear Roe v. Wade(1973) even though the pregnancy in question had already come to term by the time the case made it through the lengthy appeals process.

For more information, visit: http://education-portal.com/academy/lesson/the-court-system-trial-appellate-supreme-court.html#lesson

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