The first was the petition in Williamson v. Mazda Motor of America, Inc., No. 08-1314. The questions presented in that case are:

1. Where Congress has provided that compliance with a federal motor vehicle safety standard “does not exempt a person from liability at common law,” 49 U.S.C. § 30103(e), does a federal minimum safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions impliedly preempt a state common-law claim alleging that the manufacturer should have installed a lap/shoulder belt in one of those seating positions?

2. Under this Court’s recent ruling in Wyeth v. Levine, __ S. Ct. __, 2009 WL 529172 (2009), does a federal motor vehicle safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts impliedly preempt a state tort suit alleging that the manufacturer should have warned consumers of the known dangers of a lap-only seatbelt installed in one of its vehicles?

The second Cockle-printed petition granted was the State of Arizona’s in Garriott v. Winn, No.  09-991. The question presented page in that petition states:

Under Arizona Revised Statutes (A.R.S.) Section 43-1089, individuals who contribute money to school tuition organizations (STOs) that provide scholarships to students wishing to attend private schools are entitled to an income tax credit. Respondents alleged that Section 1089’s neutral language and the Legislature’s stated secular purpose for enacting it were a pretense and that the tuition tax credit program had the primary effect of advancing religion because a majority of taxpayers who contributed to STOs chose to contribute to STOs that awarded scholarships to students attending religious schools.

The question presented is the following:

Did the court of appeals err in holding that if most taxpayers who contribute to STOs contribute to STOs that award scholarships to students attending religious schools, Section 1089 has the purpose and effect of advancing religion in violation of the Establishment Clause even though Section 1089 is a neutral program of private choice on its face and the State does nothing to influence the taxpayers or the STOs’ choice?  

The Court also granted petitions in Sossaman v. Texas, No. 08-1438; AT&T Mobility v. Concepcion, No. 09-893; Skinner v. Switzer, No. 09-9000; and Arizona Christian School Tuition Organization v. Winn, No. 09-987—the companion case to Garriott.

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.

The petition for writ of certiorari in City of Reno et al., v. Conn, presents all of the above.  In short, the lower court opinion—written by Ninth Circuit Judge Reinhardt—places (and arguably expands) 42 U.S.C. § 1983 liability on municipalities and law enforcement when they are confronted with the unenviable task of treating mentally ill detainees.  In doing so, the decision created circuit conflicts, and ultimately, a scorching dissent from the denial of rehearing en banc by Chief Judge Kozinski.

In requesting the Court’s review, the City of Reno petition emphasizes that the lower court opinion created circuit splits on two issues, including a 5-2 split on whether municipalities can be held liable for failing to train law enforcement on diagnosing suicidal detainees. The petition also argues that:

Both issues recur frequently, affecting well over a million law-enforcement officers and more than fourteen million arrests across the country each year.  The issues are also crucially important.  Judge Reinhardt’s opinion imposes novel, undefined, and potentially costly psychiatric-training duties on thousands of cities and towns throughout the nine states in the Ninth Circuit.   It obligates officers to make nuanced psychiatric diagnoses, even where (as here) medical professionals repeatedly screen a detainee for suicide risk.  Only this Court can resolve these conflicts and give needed, uniform guidance to cities and police departments across the country.

This case also has the benefit of timing because the Court, this term, has been increasingly receptive to cases involving immunity and especially immunity involving municipalities and/or law enforcement (i.e., Pottawattamie County v. McGhee, No. 08-1065, Los Angeles v. Humphries, 09-350, Connick v. Thompson, 09-571).

All of these factors lead to the strong likelihood of a cert grant in this case. 

The petition can be viewed here.  The Ninth Circuit decision and denial of rehearing en banc can be viewed here.

The Court also issued a GVR order (granting the writ, vacating the judgment and remanding the case to the lower court), in Real Truth About Obama, Inc. v. FEC, No. 09-724.  The GVR order was issued in light of the Court’s groundbreaking decision earlier this year in Citizens United v. FEC, 558 U.S. __ (2010).

The complete order list can be viewed here.

• Are claims for declaratory relief against a local public entity subject to the requirement of Monell v. Department of Social Services, 436 U.S. 658 (1978) that the plaintiff demonstrate that the constitutional violation was the result of a policy, custom or practice attributable to the local public entity as determined by the First, Second, Fourth and Eleventh Circuits, or are such claims exempt from Monell’s requirement as determined by the Ninth Circuit?
• May a plaintiff be a prevailing party under 42 U.S.C. §1988 for purposes of a fee award against a local public entity based upon a claim for declaratory relief where the plaintiff has not demonstrated that any constitutional violation was the result of a policy, custom or practice attributable to the public entity under Monell?
• May a plaintiff be a prevailing party on a claim for declaratory relief for purposes of a fee award under 42 U.S.C. §1988 where there is neither a formal order nor judgment granting declaratory relief, nor any other order altering the legal relationship between the parties in a way that directly benefits the plaintiff?

Humphries will be argued during the 2010 Term.

The Court also heard argument in cases raising Constitutional questions.  In Christian Legal Society v. Martinez, No. 08-1371, the Court must decide whether student’s First Amendment rights are violated when a public university denies school funding and benefits to a religious student organization because that organization requires members to agree with its core religious beliefs.  The second case—City of Ontario v. Quon, No. 08-1332—involves whether individuals who used government-issued pagers have a reasonable expectation of privacy in the contents of texts sent on those pagers.

The blogosphere continues to buzz over Justice Stevens’s replacement and the affect of his absence.  The Washington Post has, in recent days, reported on both Judge Diane Wood and Solicitor General Kagan.  And Bloomberg profiles the final member of the so-called “shortlist”: Judge Merrick Garland. Finally, Tom Goldstein at SCOTUS Blog explains at length how Justice Stevens’s departure could impact Supreme Court decision making especially in the areas of executive power and preemption. 

The appendix index did not officially arrive until a change in the Court’s rules in 2007.  The Court attached one sentence to Rule 14.1(c), which states that “[t]he table of contents shall include the items contained in the appendix.”  What that means in practice is placing—at the end of the Table of Contents—a listing of the appendix documents in the order that they appear in the appendix.  The Court’s new Rule 34.4 codifies a practice we suggested at Cockle (on suggestion from the Clerk’s office) to place an appendix index in every brief that contains an appendix.

The Court changed the rules requiring an appendix index for pragmatic reasons.  A gentleman at the Clerk’s office told me that the change reflects a trend towards more user-friendly briefs.  Now a Justice or Clerk may flip to the Table of Contents and discover what documents are contained in the appendix, what order those documents are in, and what page number the particular documents are to begin. 

In the new rule, there is no suggestion on the form of the appendix index, and in fact, there are a number of ways to list the appendix documents in the Table of Contents.  Here are just a few examples from some of the leading Supreme Court practitioners.  University of Washington School of Law Professor, Eric Schnapper, lists what type of document (i.e., order, opinion or judgment), the court that issued the document, and the date the document was decided.  Former Solicitor General, Seth Waxman, separates the appendices into letters (i.e., A, B, C, etc.), describes the type of document and the court that issued it.  Amy Howe, of Howe & Russell and SCOTUS Blog fame, simply lists the documents with a few short words (i.e., “Court of Appeals Decision, District Court Decision, Denial of Rehearing En Banc”).  As described above, these highly successful Supreme Court practitioners use a variety of means to achieve the same result: the appendix index. It is not necessarily the form, but the existence of the index in your brief that matters.

No one wants to file a brief that does not conform to the letter of Supreme Court rules.  It is therefore important that you check the Table of Contents for an appendix index before you send the brief to the printer.

The petition in Encarnacion, et al, v. Astrue, No. 09-631, provides an excellent example of this strategy.  The petition can be viewed here, the brief in opposition here, and the reply brief here.  [Note: the Encarnacion petition and reply brief were printed at Cockle] 

At issue in Encarnacion is whether the Social Security Commissioner’s policy for determining child disability complies with Congressional instructions to consider “throughout the disability determination process” the “combined effect of all of the individual’s impairments.”  42 U.S.C. § 1382c(a)(3)(G).  The petition argues that the Commissioner’s policy—failing to give weight to all of a child’s impairments when deciding disability status—flies in the face of the Court’s previous decision in Sullivan v. Zebley, 493 U.S. 521 (1990), and in contravention of the clear statutory language.  The petition, however, does not contend that the lower courts are divided on the issue.

In fact, the petition straightforwardly admits the absence of a circuit conflict. Petition, at 22 (“To be sure, in this class action, there is no conflict in the circuits, nor is one likely to develop”).  This is a unique strategy.  Recognizing that lower court conflicts drive the Court’s docket, Supreme Court practitioners usually attempt to manufacture a conflict through creative characterization and generalization, in an effort to garner the Court’s attention. I spoke with one of the attorneys involved and he said that they deliberately conceded the absence of a lower court conflict, because one did not arguably exist. Petitioners instead decided to emphasize the importance of the question. 

As the leading Supreme Court authority states, “[t]he importance of the issues involved in the case as to which review is sought is of major significance in determining whether the writ of certiorari will issue.” Gressman, E. et al., Supreme Court Practice, at 262 (9th ed. 2007).  There are many ways to convey the importance of an issue (i.e., the type of issue, whether the Court has previously addressed the issue, and the number of people affected by the issue).  But since no single consideration by itself is likely to convince the Court, counsel should “advance all possible reasons tending to demonstrate the importance of the issues….”  Supreme Court Practice, at 263.   The Encarnacion petition accomplishes this goal by advancing several reasons why the Court should grant cert despite no conflict.

The petitioners in Encarnacion first work the importance of the lower court’s opinion into the merits of the case, contending that the lower court decision directly conflicts with relevant Supreme Court precedent (i.e., Sullivan v. Zebley).  Pet. at 16. Next, petitioners argue, quite persuasively, that Supplemental Security Income (“SSI”) is a “critical resource” for families whose children suffer from serious disabilities and that if the lower court decision stands, children—who are not severely impaired in one area of functioning, but substantially impaired in many areas of functioning—will not be considered disabled and thus, not receive SSI.  Petitioners also argue a key point needed for any cert petition: why Court review is needed now. Because applicants for child-disability benefits generally cannot afford legal representation, if review is not granted in this case, petitioners maintain that the issue is likely to evade the Court’s review.  Pet. at 22. And the petition is punctuated with this final sentence:  “There is no reason to allow the decision below to stand, and Zebley to be dishonored, while thousands of disabled children are deprived of the benefits to which they are entitled.”  Pet. at 23. 

Rather than rehashing the same importance grounds raised in the petition, the reply brief brings forth further grounds for review.  Highlighting facts from individual petitioners’ cases, the reply brief contends that those “amply demonstrate the irrational impact of the challenged policy…”  Reply, at 10. Petitioners support this assertion by noting additional examples provided by Amici Curiae briefs filed in support of the petition.  The cert-stage briefing ends with counsel’s contention that if the petition is not granted “the issue may evade review indefinitely, and potentially thousands of poor children will be deprived of the complete, holistic assessment that Congress intended them to have.” 

To be sure, the task of arguing the importance of a question is less arduous when the topic is as compelling as child disability.  But not every petition (even those with compelling subject matter) argues importance as comprehensively as the Encarnacion petition.  Nor do petitions routinely concede the absence of a circuit conflict. The Encarnacion petition thus stands apart from the conventional approach and is a fine model for those presenting important questions, but no splits among the lower courts.    

The Encarnacion petition is set for Conference on April 2, 2010.