What the Experts Say on Constructing the Argument Section for a Petition for Writ of Certiorari

This post is the first in a series of three discussing what Supreme Court experts suggest when preparing a successful petition for writ of certiorari.  The first will address the “argument” section, the second the “questions presented” section and the third, tips and techniques to use when writing the cert petition. 

While Supreme Court experts offer nuanced distinctions on how to construct the argument section of a petition for writ of certiorari, almost all agree that accounting for the difference in purpose between a cert petition and a brief filed in the lower courts is the sine qua non of effective petition advocacy.   

The main difference between a petition for certiorari and briefs filed in the lower courts is that the Court’s certiorari review is discretionary.  To be heard, you must convince the Court that your case is what’s called “certworthy.”  A certworthy petition is generally thought to contain legal issues that have: (1) national importance; (2) divided federal courts of appeals; (3) divided federal and state courts;  and, (4) not been decided by the Supreme Court.   See Supreme Court Rule 10; Gressman, E., et al., Supreme Court Practice, at 238-273 (9th ed. 2007); Thompson, D. & Wachtell, M., An Empirical Analysis of Supreme Court Certiorari Petition Procedures:  The Calls for Response and the Call for the Views of the Solicitor General, Geo. Mason L. Rev. Vol. 16:2, at 240 (2009) (which can be viewed here); Bishop, T. et al., Tips on Petitioning for Certiorari in the U.S. Supreme Court, at 29-31 (“Tips on Petitioning”) (which can be viewed here).  The Court normally reviews only certworthy issues for pragmatic reasons; it receives between 6,000 and 8,000 petitions a year and cannot review every instance of lower court error.  See C-Span Video Interview with Supreme Court Justices on the Topic of Granting Certiorari (which can be viewed here); Supreme Court Practice, at 276. 

Although certworthy issues compose the bulk of the Court’s docket, cert petitions are nevertheless granted on cases of lower court error (i.e., where the lower court erroneously applied or failed to apply Supreme Court precedent).  See, e.g., Corcoran v. Levenhagen, 558 U. S. ____ (2009); Youngblood v. West Virginia, 547 U.S. 867 (2006); see also, Supreme Court Practice, at 250; Shapiro, S., Certiorari Practice: The Supreme Court’s Shrinking Docket (which can be viewed here).  In such cases, the error is usually obvious, and the Court will issue a per curiam decision or summary reversal.  See, e.g., Dye v. Hofbauer, 546 U.S. 1 (2005); Spears v. United States, 555 U.S. __ (2009); Gonzales v. Thomas, 547 U.S. 183 (2006); see also,  H.W. Perry, Jr., Deciding to Decide, 265 (1991) (The Court grants cases of lower court error because “[t]ry as they might, the Justices cannot always resist acting as a court of last resort.”).  While the Court grants cert based on lower court error, it does so infrequently. 

The operation of the Court’s discretionary review plays a large role in how a cert petition should be constructed in order to be successful.  On the petition stage, the merits are much less important.  See Tips on Petitioning, at 32; Baker, S., A Practical Guide to Certiorari, 33 Cath U. L. Rev. 611, 615 (1984).  Indeed, Justice Stevens noted that “[t]he most helpful and persuasive petitions for certiorari to this Court usually present only one or two issues, and spend a considerable amount of time explaining why those questions of law have sweeping importance and have divided or confused other courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 858 (1999) (J., Stevens, dissenting).  Consequently, the argument portion of a cert petition should emphasize certworthy factors such as a circuit conflict or the importance of the issue before proceeding to the merits.  See Supreme Court Practice, at 477; Tips on Petitioning, at 32; Baker, S., supra, at 620-21; Bishop, T., et al, Tips on Petitioning for and Opposing Certiorari in the U.S. Supreme Court, at page 6 (“It is crucial to temper the natural instinct to focus on defending or attacking the lower court’s decision on the merits.”); Russell, K., Writing A Convincing Cert. Petition When There Is No Direct Circuit Split, (available on SCOTUS Blog). Predominately arguing the merits of a question presented is perhaps the most frequent error committed by attorneys filing a cert petition.

The merits, however, do have their place.   Once the traditional cert factors have been argued, a section must be devoted for the reasons why the lower court erred.  See Supreme Court Practice, at 277, 477; Tips for Petitioning, at 32; see also,  Justice Rehnquist, Oral Advocacy: A Disappearing Art, 35 Mercer L. Rev. 1015, 1027 (1984) (noting that “the most common reason members of [the] Court vote to grant certiorari is that they doubt the correctness of the decision of the lower court.”).  When arguing the merits, counsel would do well to remember the admonishment of Rule 14 (“direct and concise argument”) and Rule 33 (petition “should be stated briefly”).  See Supreme Court Practice, at 482; Tips for Petitioning, at 32.  For the merits can be argued if and when the petition is granted.  It has also been suggested that the reasons why the lower court was wrong should be “integrated” into the other sections of the argument.  See Supreme Court Practice, at 483.  For example, counsel could argue how the lower court’s erroneous decision will affect a large number of litigants or lead to an increase in litigation, thereby creating an issue of national import.

Although a petition for writ of certiorari is a different animal from other appellate briefs, it is one that can be tamed with the use of these suggestions from the experts.

High School Student Challenges School Dress Code Policy

In 2008, Paul “Pete” Palmer—a sophomore at Waxahachie High School in Texas—wore a shirt supporting presidential candidate John Edwards.  The shirt displayed the innocuous message “John Edwards 08.”  Although the message was neither disruptive, nor offensive, the Waxahachie Independent School District informed Pete that the shirt contained “unapproved words” violating school district policy. That policy prohibited students from wearing clothing displaying slogans, words and symbols not promoting the district and its instructional programs. Pete challenged the district’s policy alleging that it amounted to unauthorized censorship of political speech in violation of the First Amendment. 

A federal district court in Texas rejected the challenge and the case moved to the Fifth Circuit Court of Appeals.  Because the school district’s policy of banning all political speech was content-neutral, the Fifth Circuit ruled that intermediate scrutiny applied.  The Fifth Circuit also held that the district’s policy of restricting student political speech was no more strict than necessary to achieve the district’s goals of improving the educational process, and therefore, the policy was constitutionally acceptable. By holding that policies prohibiting student political speech are subject to intermediate scrutiny, the Fifth Circuit joined the ranks of decisions from the Sixth and Ninth Circuits, in conflict with the decisions from the Second and Third Circuit on the issue. 

 Last week, Allyson N. Ho of Morgan, Lewis & Brokius LLP, filed a petition for writ of certiorari in Palmer v. Waxahachie Independent School District, No. 09-409, asking the Court to review the Fifth Circuit’s decision.  The petition contends that the Palmer case is “an ideal vehicle for re-affirming [First Amendment political speech] principles, resolving the conflict among the Circuits about the proper application of Tinker [v. Des Moines Independent Community School District, 393 U.S. 503, 514 (1969)], and bringing badly needed clarity to an important area of the law—one that daily impacts millions of students, their teachers, and school administrators.” 

The petition should conference later this year or early next. 

Supreme Court Grants Ten Petitions

The Supreme Court issued an order list today granting review on ten cert. petitions.  The so-called “long conference” was heavy with cases involving criminal law. Six petitions covering a range of issues from the Miranda rule to terrorism were granted.  The order list can be viewed here.    

Supreme Court Building

The long conference also advanced a case testing the scope of the Second Amendment.  In McDonald, et al. v. City of Chicago, No. 08-1521, the Court will decide whether the Second Amendment applies to the States through the Due Process Clause or the long-thought dead Privileges and Immunities Clause.  Alan Gura of Gura & Possessky, is the counsel of record.  The petition and reply brief can be viewed here and here.

The Court also granted review in Henneford v. Castaneda, et al., 08-1547. At issue in Henneford is whether government medical employees are immune from civil rights suits filed against them.  The petition argued that Congress specifically provided immunity under 42 U.S.C. § 233(a) for Public Health Service officials.  The petition and reply brief can be viewed here and here.  Our previous blog on Henneford can be viewed here.

A full listing of the petitions granted review can be found here at SCOTUS Blog.

Circuits Split over the Interpretation of the Federal Narcotics Statute

A petition for writ of certiorari filed in Robinson v. United States, No. 08-1374, asks the Supreme Court to clear up a circuit split over the meaning of a federal narcotics statutory provision.  The petition and reply brief can be viewed here and here.  The Solicitor General’s brief in opposition can be viewed here.

The petitioner was indicted for a drug conspiracy involving more than five kilograms of cocaine after previous convictions for felony drug offenses. Under 21 U.S.C. § 841(b)(1)(A), a person charged with five kilograms or more of cocaine, after two or more prior convictions for felony drug offenses, is subject to a mandatory life sentence.   One of the issues at trial was whether Robison was a major or minor player in the conspiracy, and whether he was aware of the entire drug quantity distributed in the conspiracy.  After closing arguments, the trial court instructed the jury to determine whether more than five kilograms of cocaine were involved in the conspiracy as a whole, rather than determining the individual drug amounts foreseeable to Robinson.   The jury ultimately concluded that over five kilograms of cocaine were involved in the conspiracy, and Robinson was sentenced to mandatory life under § 841(b)(1)(A). 

The Sixth Circuit acknowledged that courts of appeals are divided on whether the drug quantities necessary to trigger § 841(b)(1)(A) must be determined for each individual defendant.  Aligning itself with the majority of circuits that have ruled on the issue, the Sixth Circuit concluded that only a conspiracy-wide finding of drug quantity was needed to calculate and impose the penalty provision of § 841(b)(1)(A).  On the other side of the split are the Fourth and Ninth Circuits, which have held that a jury must find a foreseeable quantity of drugs for individual defendants before the penalty provision of § 841(b)(1)(A) can be applied.

The petition is scheduled for conference on September 29, 2009.

The Continuing Viability of Manifest Disregard on Arbitration Review

In a case implicating judicial review of arbitration awards under the Federal Arbitration Act (“FAA”), a Michigan company has petitioned the Supreme Court to settle the question of whether the doctrine of manifest disregard of law remains viable after the Court’s ruling in Hall Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. __, 128 S. Ct. 1396 (2008).  The petition and reply brief in The Coffee Beanery, LTD., et al., v. WW, LLC, et al., can be viewed here and here. 

The petition was bolstered during the summer by the publication of several academic articles recognizing the circuit courts’ divergence on the remaining viability of manifest disregard under § 10 of the FAA.  See reply brief, pages 1-2.  In fact, one article stated that the Court’s guidance was needed to settle the question left unanswered in Hall Street, “once and for all.”  Richard C. Reuben, Building the Civilization of Arbitration: Personal Autonomy and Vacatur after Hall Street, 113 Penn. St. L. Rev. 1103, 1145-46 (2009). 

 The question arose from an arbitration award to The Coffee Beanery company.  The respondents filed suit in federal district court asking for review of the arbitration award under § 10 of the FAA, and the district court affirmed the award. 

 One issue on appeal was whether § 10 provided judicial review of the arbitration award by means of the manifest disregard of law doctrine.  The Sixth Circuit began by noting that review of an arbitrator’s decision under the FAA is one of the narrowest standards of judicial review created by statute.  Under § 10, an arbitration award is reviewable only under certain enumerated grounds including where: (1) the award was procured by corruption, fraud, or undue means; (2) arbitrators evidenced partiality or corruption; (3) the arbitrators were guilty of misconduct; and (4) the arbitrators exceeded their power.     

 Although the Sixth Circuit acknowledged that the Supreme Court in Hall Street had rejected a reading of the FAA allowing vacation of arbitration awards for reasons other than those specified in § 10, the court nevertheless concluded that Hall Street had not explicitly rejected the long-standing judicial doctrine of manifest disregard of law.  Describing the doctrine as a “universally recognized principle,” and citing cases from other circuits applying manifest disregard review (albeit pre-Hall Street), the court concluded that manifest disregard review continues unabated.  The court then reversed, holding that the arbitrator issued the award to Coffee Beanery under an erroneous interpretation of Maryland franchise law. 

 The petition argues that the Supreme Court’s review is needed to resolve a “deep, square conflict” over the viability of manifest disregard as a ground for vacating arbitration awards; that decisions applying manifest disregard are in “substantial tension” if not “outright conflict” with Hall Street; and that allowing manifest disregard review erodes the core arbitration benefits of finality and efficiency. The petition also contends that normal vehicle problems hampering certiorari review are not present in Coffee Beanery.

 The Coffee Beanery briefs were distributed on September 9, 2009, and according to the Court’s conferencing schedule, the case should be decided on September 29, 2009.

The Case That Gained National Attention

Karen Torre was the attorney who had the difficult task of convincing the Supreme Court to review a one-paragraph summary ruling by the Second Circuit Court of Appeals.  But convince them she did.  On June 29, 2009, the Supreme Court ruled that Frank Ricci and 17 other New Haven, Connecticut, firefighters were illegally discriminated against when city officials discarded promotional examination results in which white and Hispanic firefighters scored higher than African American firefighters.  Ricci, et al. v. DeStefano, et al., Nos. 07-1428, 08-328.