US Supreme Court Glory has Never been so Far Away.
The US Supreme Court has specific criteria to get their attention. Start preparing now. You have to be perfect to get them to hear your case. That means starting from the beginning.
This article is not going to answer every question. Because you are going to be told where to find those answers. This is focused on what the core must do’s are. Especially the one thing the US Supreme Court keeps yelling, but few people hear.
Core Foundational Points
You must raise federal issues in the first court, meaning before the court of appeals. Then raise in the appellate court. Then raise again in the state highest court. You will be required to show the US Supreme Court in your petition for review that you did so, and cite and quote the record. Rule 14.1(g)(i)
Certiorari (sounds like sir with Ferrari but a sh sound, sir-sherrari) is a super old word that basically means review.
You will be petitioning for review but called a petition for a writ of certiorari. The function of the writ is to call up the record from the court that last possessed it. So unless you were granted review by the state’s highest court, as an example, you are actually going to request:
[Your Name] respectfully petitions for the writ of certiorari directed to the California Second District Court of Appeals, Division Seven.
Once the appeal is done, you then petition the state’s highest court for review. If denied you can proceed to the US Supreme Court.
The key to getting the US Supreme Court’s attention, is to give them what they want. Which is conflict.
It's subtle, but the key to the US Supreme Court was always right there.
Almost every US Supreme Court case you read will quickly make comment about lower courts disagreeing.
“The Eleventh Circuit rejected Greer’s argument, 798 Fed.Appx. 483 (2020), while the Fourth Circuit agreed with Gary’s argument, 954 F.3d 194 (2020). We granted certiorari in both cases. See 592 U.S. ––––, 141 S.Ct. 974, 208 L.Ed.2d 509 (2021).” Greer v. United States (2021) 141 S. Ct. 2090, 2096
“We granted certiorari in view of a division of opinion among state courts of last resort on the question whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection.” McCoy v. Louisiana (2018) 138 S. Ct. 1500, 1507
I have read a lot about what makes them tick. And Justices have said: we do not hide it, we only care about conflicting lower courts. On occasion they will hear a super important issue or a brand new one that should be resolved to set the stage for lower courts. But the usual way to have any chance is to present them with conflicting lower courts. Yet no one does it.
Filing with the US Supreme Court has Rigid Jurisdictional Requirements
Generally, from highest state court of last review, you get 90 days to file with the US Supreme Court. 28 U.S.C. § 1257 (basis for review); 28 U.S.C. § 2101 (c) [civil] (d) [criminal] 28 U.S.C. § 2102 (criminal state cases have priority); 28 U.S.C. § 2106 (authorized options to resolve)
See US Supreme Court Rules of Court, (link also contains all general instructions needed):
Rule 13.1
“Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals (including the United States Court of Appeals for the Armed Forces) is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment. A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review.”
Rule 29.2
Timely if post marked by the United States Postal Service by first-class mail (including express or priority mail) bearing a postmark showing it was mailed on or before the last day for filing. If using a private company (UPS or FedEx) same rule about date stamp and “for delivery to the Clerk within 3 calendar days” which means it must be delivered in 3 days, the USPS option does not have that requirement. Inmates must deposit it with prison’s mail system and include an affidavit declaring date of deposit and stating postage prepaid.
Additional US Supreme Court tips
They give you 90 days. Use most of it to research your issue in all state courts and all circuit courts. You need to show there is different outcomes. If you cannot find them, then find a new issue to raise and research that. But it must be issues you have raised the entire time. And must be an issue that connects to the federal constitution. The U.S. Supreme Court will not address state law issues.
Then you MUST get a book called Supreme Court Practice by Shapiro, Geller, Bishop, etc. (Picture is below.) You cannot find them for sale, when you do they are $3,000. But your local law library or university should have one. Get it week one. Review it and read it first, return when due. Then research for conflict. Rent it again. Review your drafting requirements, return it. Draft your brief. Rent it again, double check you did it all correctly.
You have a 1% chance if you are doing it in forma pauperis (free version) and a 5% chance if you do the paid version (actual book brief submitted). If you don’t try you have a 100% chance at losing. If you are going to play, then you have to show them conflict and be as perfect as you can be. This book is the key.
Conclusion
The book has all your answers. The above is the road map to keep in mind. And the special point that no one notices, is to find all the conflicting cases you can.