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Can I Take My Case up to the Supreme Court?

Can I take my case up to the Supreme Court?
Answer: almost certainly not.

From time to time, after a stinging defeat, lawyers on television, on the courthouse steps, will say “We’re going to appeal our case all the way to the Supreme Court!” In practice, however, there is little, if any, chance that that case will find its way to the U.S. Supreme Court. Here’s why.

Each year the United States Supreme Court is asked to review about 7,000 cases. Out of those 7,000 cases, the US Supreme Court accepts — or in legal parlance grants writs of certiorari to — about 100-150 cases per year. This works out to about a 2% rate of acceptance.

The Court is not under any obligation to accept any appellate case whatsoever. Normally the cases that the U.S. Supreme Court accepts fall under three broad categories: those that are designed to synchronize conflicting U.S. Federal Circuit courts; questions of national importance; and cases that have some sort of precedential importance. Generally speaking, the Supreme Court will only accept a case that has made its way through the appellate courts. That means that the appellant will need to exhaust his or her appeals in the relevant lower-level appellate courts before the U.S. Supreme Court will consider taking the matter. In practice, the appellant may need to appeal the case through three or more courts before asking the U.S. Supreme Court for review.

Article III, Section 2 of the U.S. Constitution provides the U.S. Supreme Court with original jurisdiction over cases involving disputes among ambassadors (and other high-ranking ministers) and disputes between the states. In practice, however, the U.S. Supreme Court does not hold trials with witnesses and evidence. Even in the small number of cases where the U.S. Supreme Court exercises original jurisdiction, the Justices appoint special masters (trial judges, so to speak) to hold the trial. The special master then prepares a report with recommendations and forwards it to the justices. The justices will decide whether or not to uphold the special master’s report.

The U.S. Supreme Court rejects about 98% of cases each year. The chances that a run-of-the-mill matter, while important to the individual litigants, will be accepted by the U.S. Supreme Court is extremely small. Further, even if the matter is meets the Court’s criteria of an acceptable case, there are practical considerations for the private individual parties that weigh against an appeal. As discussed above, the litigant would need to hire a lawyer to exhaust several layers of appeals before getting to the U.S. Supreme Court. This all costs money, which is one reason why there are not many straight personal injury cases that make it this far.  A petition for a writ of certiorari is a lengthy, dense legal document. This document requires considerable attorney time to prepare, which is expensive. Further, if cert is granted (meaning that the Court accepts the case) another much lengthier document is prepared and filed with the Court. Each step along the appellate path is expensive, time-intensive, and uncertain. Many litigants will instead attempt to settle their cases or abandon their appeals altogether, out of time and cost concerns.

By Attorney Seth Lindberg