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State Attorneys General Offices and the Certiorari Process

Dan Schweitzer, Supreme Court Counsel

The Solicitor General of the United States is often referred to as “the Tenth Justice” because of the influence he exerts and the respect the U.S. Supreme Court accords the office. Alas, no state attorney can claim a similar status. States speak to the Court not with one voice, but with a multitude of voices; and few state attorneys appear before the Court more than a few times each year. That said, the states still hold a privileged position in the Court. This can be seen by looking at rarely studied statistics on the states’ success in obtaining Supreme Court review.

It is common knowledge that the Court grants few petitions for writs of certiorari. In paid cases, the Court grants approximately 4% of the petitions filed; in in forma pauperis cases, the figure is about 0.2%[1]. Does this mean a state Attorney General considering whether to seek Supreme Court review faces only a one in 25 shot at succeeding? The answer is a resounding no.

My review of all cert petitions filed by state Attorneys General offices during the 2001 to 2006 Terms reveals that state petitions were granted 22% of the time. The table below shows the year-by-year results[2]:

Petitions Filed Granted Denied Held or GVRed Success Rate
2006 Term 55 9 42 4 18%
2005 Term 81 10 57 14 15%
2004 Term 82 23 53 6 30%
2003 Term 84 14 57 13 20%
2002 Term 94 24 60 10 29%
2001 Term 75 13 58 4 18%
Total 471 93 327 51 22%

Although the states’ petitions were not as likely to be granted as petitions filed by the United States (which files far fewer petitions each year than the states do collectively and is more selective in choosing its cases), the states’ success rate is far higher than that of private parties. The obvious reason for this is that state cases raise issues of fundamental importance to our legal system and our constitutional structure. As a consequence, whereas the success of private cert petitions almost always depends on whether they demonstrate a circuit split, the same is not true of the states’ cert petitions. When, for example, a federal court of appeals refuses to adhere to the limits imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) or holds an important state law preempted, the Court will often intervene to ensure that state prerogatives are not unduly trenched upon.

A final piece of evidence of the important role states play in the certiorari process is the success rate of amicus briefs filed by states in support of cert petitions. In the 2001 through 2006 Terms, the states filed 110 amicus briefs that asked the Court to grant a pending cert petition. The Court granted certiorari in 46 of those cases ― meaning the states had a success rate of 42%. (The states’ success rate is 47% if the prior five Terms are included.[3]) Again, this is an extraordinary figure when compared to the 4% success rate of paid petitions in general.

The lesson to be learned is that states have a major voice before the U.S. Supreme Court, and have a genuine opportunity to use the Court to move the law in favorable directions. This is not to suggest that states file cert petitions (or supporting amicus briefs) willy nilly. The states’ credibility in the Court depends on their filing cert petitions only when there is a plausible case for Supreme Court review. States should always consider the likelihood and implications of an adverse ruling. But, if state Attorneys General offices choose their cases wisely, the U.S. Supreme Court can be a valuable “tool” in furthering their core missions of enforcing the law and protecting the public interest.

[1] Robert L. Stern, et al., Supreme Court Practice (8th ed. 2002), at 59-60.

[2] The information is derived from my review of the summaries of all paid cert petitions that appears in U.S. Law Week’s Supreme Court Today. For the sake of clarity, I deemed a petition as falling within a particular Term if the case number began with that Term’s year. For example, all petitions with case numbers beginning 03 were deemed to be in the 2003 Term. The success rate excludes petitions that were held pending the disposition of a granted case or that resulted in the Court granting the petition, vacating the judgment below, and remanding for reconsideration in light of a recent opinion (so-called “GVRs”).

[3] These figures are derived not from a review of the Court’s docket, but from my longstanding role facilitating the circulation of amicus briefs. It is very rare for a state to file an amicus brief in the Supreme Court of which I am not aware. That is always a possibility, however, so I cannot assert that these figures are definitive.

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