November 01, 2013 Protecting Wrongful Death Settlement Proceeds from Medicare

How to Get Your Case to the Supreme Court—or, in the Alternative, How to Keep It from Getting There

Published in The Brief, Volume 43, Number 1, ©2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Sometimes in the course of litigation, lawyers begin to wonder whether their case has a real chance of going to the Supreme Court. Usually the answer is no. But every once in a while, lightning strikes. When your client needs to bring on one of these weather events, there are specific steps you can take to make it more likely to happen. Just as important, when your clients decidedly do not want to take a trip to the highest court in the land, there are things you can do to help them find shelter from the storm. When you find yourself thinking about how to structure a petition for a writ of certiorari—or, just as important, a brief in opposition (BIO)—the best place to start is by reviewing examples from the past. And they are easy to find, for free, on the Internet. A website called SCOTUSblog maintains pages for each case the Court considers on the merits, and each has links to the briefing that convinced the Court to grant review.1 The same blog develops a running list of petitions the authors believe to have a better-than-average shot of being granted.2 It can be instructive, after the Court denies cert in one of those cases, to see what the respondents said to ward off review. If you review examples of cert-stage documents from the past, you will see that the petitioners and respondents tend to use particular buzzwords to describe what is going on. And they tend to focus on the same overarching considerations each time they seek or oppose cert. 

Want to convince the Court? Speak its language. Phrases like “entrenched split,” “factbound error correction,” and “vehicle problem” should be in your lexicon. 

 

Is There a Split?

The most important aspect of cert-stage briefing is the concept of a “split.” Most clients think all their cases are important, and understandably so. The Court doesn’t see things that way. Unless a case involves a fundamental issue like the constitutionality of the Affordable Care Act, the justices generally will not think a case is worth their review unless it implicates a lower court “split.” Indeed, the existence or nonexistence of a split tends to be the single most important factor in determining whether the Court will grant review. And you should keep two things in mind about what counts as a split for these purposes and what does not. 

First, a split involves different lower court holdings about discrete and particular questions of law. Offhand dicta, or musings buried in stray footnotes, will not be good enough. The lower court needs to have fully considered the issue, to have formulated a clear legal rule, and to have applied it in a casedispositive way to the facts before it. If the court in your case appears to have applied the same rule as other courts to have considered the question, and your complaint is simply that your court did not apply the rule correctly to the facts before it, then you don’t have a split.

Second, the split needs to be between the federal circuits—or, depending on the question presented, state supreme courts. A difference of opinion among federal district courts or intermediate state courts of appeals won’t be sufficient. The Supreme Court generally does not resolve splits of that sort because the federal courts of appeals (in the case of splits involving federal district courts) or state supreme courts (in the case of splits involving intermediate state appellate courts) can almost always resolve those splits without the Court’s intervention.

It helps greatly if the split is deep, in the sense that more than two courts have addressed the issue. If the split is shallow, the Court may believe that allowing the issue to bounce around a little longer may help clarify the practical stakes and pertinent legal arguments. Likewise, if the split is particularly lopsided, in the sense that all the courts have adopted the same view of the issue except one, the Court may reason that if it lets the issue percolate further, the outlier court may change its rule via the en banc process or otherwise.

It also helps if the lower court in your case acknowledged that there was a split or that it was creating one. If the court in your case has not professed disagreement with some other court, the Supreme Court may infer that you are blowing things out of proportion when you claim that the lower court broke with the case law in some other circuit.

If you would like some sense of how the arguments over splits tend to go, you might take a look at the briefing from Walden v. Fiore, a recent cert grant where the question presented involves personal jurisdiction.3 The petitioner typically comes up with language from another jurisdiction that, on its face, looks incompatible with the decision below. The respondent then attacks the split by asserting, among other things, that the circuits aren’t really divided and that any split is shallow and deserving of further percolation. 

 

Is Your Case Important?

Even when the circuits have not split on the question presented, the Court sometimes grants review because it thinks your case is very important. Often you will know when you have one of these cases. If your court of appeals has declared parts of the Defense of Marriage Act or the Voting Rights Act unconstitutional, your case is probably going up, no matter what the cert briefs say. Likewise, the Court often grants cert when a lower court has invalidated a major federal administrative rulemaking. But the Court sometimes grants cert on other, not-so-obvious “splitless” questions. In these cases, the petitioner typically has done an exceptionally good job convincing the Court that the question is extremely important. Even in cases in which there is a split, the petitioner typically has spent substantial time persuading the Court that even putting the split to the side, the case is important. 

Consider one example from last term. In Standard Fire Insurance Co. v. Knowles, the Court granted cert on a question the court of appeals had not even addressed. That question was whether the lead plaintiff in a class action case can avoid federal jurisdiction by stipulating that he would seek less than the jurisdictional amount in damages on behalf of the class. The district court held that the answer was “yes,” and thus that there was no federal jurisdiction. The defendant had no right to appeal that determination, but only the ability to seek a discretionary appeal. The Eighth Circuit declined to grant such an appeal, and it is quite remarkable that the Supreme Court then granted cert and reversed. One possible explanation for this turn of events is that the cert petition was quite good. It did not try to fudge a split; it explained that the Eighth Circuit was the first court to address the question squarely (albeit in a previous decision). The petition also did an excellent job explaining why the decision below was important. A petitioner’s assertions that its case is particularly important are always much more credible if amici file briefs supporting those assertions, and the petitioner in Standard Fire had help from the Chamber of Commerce and the Center for Class Action Fairness. Perhaps most important, the petitioner in Standard Fire did a good job explaining why the Court’s immediate review was necessary. The petitioner noted that the cases in which plaintiffs are using this device are concentrated in a single jurisdiction, and argued that allowing the issue to percolate further would cost defendants billions of dollars. 

The flip side of this proposition is that if you are opposing cert, you want to spend a good chunk of your BIO arguing that the case is not particularly important. A good way of putting this point—using language that tends to resonate with the justices’ law clerks—is to tell the Court that review of the matter will involve, at most, “fact-bound error correction.” This is code for the notion that the Court’s decision would not have any importance beyond the immediate facts of the case. In part for that reason, a good BIO will devote a lot of space to the facts, thus suggesting that the case turns on the sorts of details the Court will not be excited about having to resolve. 

Was the Decision Below Wrong?

Even when a case implicates a split, it is often crucial for the petitioner to persuade the Court that the decision below was wrong. The Court reverses judgments much more often than it affirms them. So all factors being equal, the Court is more likely to grant cert when it believes that it needs to correct the judgment below. Accordingly, any good cert petition will spend substantial time arguing that the decision below was wrong; and any good BIO will spend substantial time arguing that just the opposite was true. Sometimes the Court will decide that the decision below is so clearly wrong that full briefing and oral argument are not even necessary. In these cases, the Court “summarily reverses” the decision below. This has become a sufficiently frequent occurrence that petitioners occasionally ask for this disposition explicitly in their briefs. When the petitioner makes this sort of request, one of the most important things a BIO can do is show that, whether or not the reasoning of the decision below is incorrect, the result is not something the Court should disturb. 

Are There Vehicle Problems with the Petition?

The best BIOs devote much of their space to explaining why there are so-called “vehicle problems” with the petition. These are considerations that may make the case much more complicated than the Court would prefer. Examples include the following: 

1. Threshold problems, such as issues about jurisdiction, that may prevent the Court from reaching the merits;

2. Disagreements among the parties about the facts of the case;

3. The petitioner’s failure to raise certain questions below, or the lower court’s failure to pass on those questions;

4. Gaps in the appellate record that may make the facts unclear;

5. The lower court’s reliance on alternative holdings, such that even if the petitioner is right about the question presented, it will still lose in light of the alternative holding; and

6. Intervening circumstances that have arisen since the lower court’s decision that may moot the case.

When you work on your petitions and BIOs, you should keep in mind that the justices’ clerks never want to recommend cert in a case that raises serious vehicle problems. The single most embarrassing thing that can happen to one of these young lawyers, during their year on the Court, is to recommend that the Court grant cert in a case only to have a vehicle problem prevent the Court from reaching the merits. So when you are the respondent, you will want to tell the Court that the petition raises all sorts of vehicle problems that will rear their ugly heads if the Court grants review. Correspondingly, if you are the petitioner, you will want to preemptively tell the Court, before the BIO is filed, that there are no vehicle problems in your case. 

Conclusion

Much about cert practice is beyond our control. Some cases simply aren’t certworthy, and the Court has no choice but to intervene on others. But plenty fall within a gray area between those extremes. When you think you have one of these cases, focusing on these sorts of considerations can help your client get to Washington—or, in the alternative, can help you make your clients very happy about not having to take that trip. 

Notes

  1. See Merits Cases: October Term 2013, SCOTUSBLOG,www.scotusblog.com/case-files/terms/ ot2013/?sort=mname (last visited Sept. 24, 2013).
  2. See Petitions We’re Watching, SCOTUSBLOG,www.scotusblog.com/case-files/petitions-were-watching/ (last visited Sept. 24, 2013).
  3. See Walden v. Fiore, SCOTUSBLOG,www.scotusblog.com/case-files/cases/walden-v-fiore/ (last visited Sept. 24, 2013).
  4. See The Standard Fire Insurance Co. v. Knowles, SCOTUSBLOG,www.scotusblog.com/case-files/cases/ the-standard-fire-insurance-co-v-knowles/ (last visited Sept. 24, 2013). 

John C. Neiman Jr.

Solicitor General of Alabama

John C. Neiman Jr. has been the solicitor general of Alabama since January 2011. In that capacity, he has argued two cases before the Supreme Court and dealt with cert-stage briefing in many others. He was a clerk for Justice Anthony M. Kennedy from 2001 to 2002. He can be reached at jneiman@ago.state.al.us. 

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