Is the Cert Process Fully Adversarial?

Today, the Supreme Court continued its recent streak (documented at Scotusblog) of granting cert only in cases that have already been relisted at least once.  Why would the Court suddenly adopt this approach?  One possibility is that the Court has diminished confidence in adversity at the cert stage.

By way of background, the process of granting cert usually involves a petition for review and a brief in opposition to review.  The opposition brief is an interesting document.  It should typically argue that the decision below was correct and that there are no compelling circumstances, such as a circuit split, warranting review.  In addition, the opposition should check to see whether there are so-called “vehicle defects” that might prevent the Court from answering the legal question presented.  Should a vehicle defect go unnoticed at the cert stage, then the Court might have to dismiss the case later on, or muddle through an unnecessarily convoluted opinion.  Thanks to the rise of the Supreme Court bar, and the proliferation of pro bono law school clinics, the authors of opposition briefs are increasingly aware of the need to make vehicle-based arguments.  Still, mistakes do happen, and (as Scotusblog points out) that simple fact may explain why the Court has apparently instituted a double-check procedure before granting cert.

But the recent rise of a dedicated Supreme Court bar could also create new difficulties.  Normally, the party in opposition to cert wants to preserve its victory in the court below.  But, in some situations, the party that won below may want Supreme Court review.  This could be for client-centered reasons.  For instance, some clients would like to win a nationwide victory in the Court right away, rather than settle for a small triumph in the Court of Appeals.  In those instances, the party that won below might actually acquiesce in cert.  In other situations, the attorneys who take on a brief in opposition might have a personal interest in having cert granted, since that would yield the honor and opportunity to argue in the Supreme Court.  This fact might have subtle, even unconscious effects on the opposition brief.  In this respect, the cert process vaguely resembles class action settlements, which also call for heightened judicial scrutiny, given the frequently large personal stakes for the attorneys involved.  (For related discussion, see this piece by Aaron Tang.)

In short, there may now be an increased need for the Court to take it upon itself to make sure that it is granting review in good vehicles, and the Court’s new auto-relist procedure may be an attempt to grapple with that issue.



Filed under Cert Stage

3 responses to “Is the Cert Process Fully Adversarial?

  1. For what it’s worth, I think that the development of the Bar probably points in both directions, but not for reasons related to the lawyers’ mixed incentives. More petitions are being done by experienced practitioners who are skilled at hiding problems with cases. On the other hand, more briefs in opposition are being done by the same kind of lawyers who are skilled at finding problems and raising doubts about whether to grant cert. Also, the contrary premise of the post is that the Court is DIGging materially more cases. Anecdotally, I don’t think that’s true. In terms of its reasoning, I’m not aware of a case where someone has said it looked like the opposition wasn’t full throated. But I can say from my experience that a lawyer representing the respondent is frequently more enthusiastic about cert. being granted and getting his/her first opportunity to argue than an attorney for whom it would be one of many. I don’t think it affects how they brief the case in either event, though.


    If current trends continue, we will soon see a Term of only 10 cases, each relisted 10 times before being granted. Good vehicles all.

  3. Roy Englert

    I largely agree with Tom, but would go further. I do not think the best cert. petitions hide vehicle problems. Rather, I think the very best cert. petitions anticipate, acknowledge, and offer answers to any major vehicle problems. And I do not think the leading members of the Supreme Court bar try — consciously or unconsciously — to do anything other than maximize the chance of a cert. denial when they file briefs in opposition, save in cases like Aereo where the client actually wants Supreme Court review. As a result, I do not think the rise of the Supreme Court bar cuts in both directions. I think it cuts heavily in the opposite direction from Richard’s hypothesis.

    I will acknowledge one exception, but it has nothing to do with counsel’s motivation. I do think that the Court itself seeks cases in which the presentation on both sides will be strong. Therefore, when the brief in opposition is really good — regardless of authorship — but the issue is certworthy, the Court (somewhat perversely) may take the case with the good BIO rather than a different case presenting the same issue with a weak BIO.

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