December 19, 2019 Articles

Framing the Issue: Three Key Ingredients

These three key ingredients will not guarantee success, but their absence almost always foreshadows failure.

By Robert S. Peck

A petition for certiorari must do many things well to achieve success. This is because in a typical year, the Supreme Court of the United States receives between 7,000 and 8,000 petitions for certiorari, but the Court grants review in fewer than 1 percent. In their book, Making Your Case, the late Justice Antonin Scalia and Bryan A. Garner explain that a petition for certiorari must demonstrate that the court below adopted an important rule of law erroneously, “not merely the erroneous application of a rule correctly expressed.” That sentiment finds explicit expression in the Court’s Rule 10. Even when you follow that sage advice, though, you still must do more to assure that your petition rises above the chaff that characterizes even well-written petitions that touch all of the necessary bases.

This article focuses on three key ingredients that are must-haves if your petition will have a chance of succeeding: a compelling issue, a theme, and apparent importance to the justices. The existence of all three will not guarantee success, but their absence almost always foreshadows failure. Incidentally, these guidelines provide useful elements for all appellate briefs. 

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