or not it will hear a particular case. The Court only hears eighty out of eight thousand cases each term so the chances for review in any particular case are extremely small.
However, the Court has provided “consideration” for cases that it might take in Rule 10 of its Supreme Court Rules.
CourtSpeak: Rule 10 of the Rules of the Supreme Court
Considerations governing review on writ of certiorari: “Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:
(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;
(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.”
What is the importance of circuit splits?
Even experienced Court observers warn there is no way to predict with great accuracy when the U.S. Supreme Court will agree to hear a case. However, one of the best predictors is when a case presents an issue that divides the lower federal appeals courts. This is called a circuit split. Rule 10(a) of the Rules of the Supreme Court identifies as an important consideration when a federal appeals court decision conflicts with another federal appeals court decision.
For example, in 2005 the U.S. Supreme Court heard the case of Cutter v. Wilkinson to determine the constitutionality of a federal law called the Religious Land Use and Institutionalized Persons Act (RLUIPA). The high court agreed to hear this case in part because the Sixth U.S. Circuit Court of Appeals had ruled the act violated the Establishment Clause of the First Amendment. Several other circuits, including the Fourth, Seventh, and Ninth, had ruled that RLUIPA did not violate the Establishment Clause. The U.S. Supreme Court took the case to resolve the circuit split on the constitutionality of this federal law, which it did by upholding the law.
CourtSpeak: The Discuss List
On September 27, 2001, in a lecture at the University of Guanajuato in Mexico, Chief Justice William Rehnquist spoke about the Court’s discuss list: “Shortly before each conference, I send out a list of the petitions to be decided during that conference that I want to discuss. Each of the other Justices may ask to have additional cases put on the ‘discuss list.’ If at any particular conference there are 100 petitions to be decided, there may be anywhere from 15 to 30 that are on the discuss list. The petitions for certiorari that are not discussed are denied without any recorded vote.”
What are circuit assignments?
Sometimes litigants will seek an immediate stay of a lower court ruling before a particular Supreme Court justice. The circuits are divided among the nine justices for them to consider these emergency applications. As of February 1, 2006, the circuit assignments for the current Court are:
| Chief Justice John Roberts Jr. | District of Columbia, Federal and Fourth Circuits |
| Justice John Paul Stevens | Sixth and Seventh Circuits |
| Justice Antonin Scalia | Fifth Circuit |
| Justice Anthony Kennedy | Ninth Circuit |
| Justice David Souter | First and Third Circuits |
| Justice Clarence Thomas | Eleventh Circuit |
| Justice Ruth Bader Ginsburg | Second Circuit |
| Justice Stephen Breyer | Tenth Circuit |
| Justice Samuel A. Alito Jr. | Eighth Circuit |
What is the discuss list?
The discuss list refers to a group of cases that the justices, primarily the chief justice, determine are cases worthy of discussion in the Court’s conference meetings, which are held on Wednesdays and Fridays. If a case makes the “discuss list,” it has a far better chance of being accepted for review.
What is the rule of four?
The rule of four refers to a Supreme Court practice that the Court will hear a case if four justices agree the case is certworthy, or worthy of being reviewed. The practice has been in existence since at least 1924.
CourtSpeak: Rule 28—Oral Argument
“Oral Argument should emphasize and clarify the written arguments in the briefs on the merits. Counsel should assume that all Justices have read the briefs before oral argument. Oral argument read from a prepared text is not favored….
Unless the Court directs otherwise, each side is allowed one-half hour for argument. Counsel is not required to use all the allotted time….
Regardless of the number of counsel participating in oral argument, counsel making the opening argument shall present the case fairly and completely and not reserve points of substance for rebuttal.”
Where do the justices decide whether to accept a case for review?
The justices decide which cases they will decide in their weekly meetings in conference. These meetings take place in the “Conference Room” in the Supreme Court building. Only the nine justices attend these conference meetings; law clerks and other personnel are not allowed to attend. If someone knocks on the door, the most junior justice must answer the door.
The chief justice normally begins the meetings by bringing up the cases on the “discuss list.” The chief justice then speaks about particular cases and whether he or she believes the case should be reviewed. The customary practice is that each of the justices speaks in order of seniority.
When the Court decides to hear a case, what happens next?
The Court informs the Clerk of the Court, who must then schedule oral argument. Under Rule 25, the petitioner then must draft a written document called a brief (a bit of a misnomer because
