Certiorari, Writ of

• Author: Kenneth L. Karst
• Pages: 327-328

Page 327

A writ of certiorari is an order from a higher court directing a lower court to transmit the record of a case for review in the higher court. The writ was in use in England and America before the Revolution. Unlike the WRIT OF ERROR, which was used routinely to review final judgments of lower courts, certiorari was a discretionary form of review that might be granted even before the lower court had given judgment.

When Congress established the circuit courts of appeals in 1891, it expressly authorized the Supreme Court to review certain of these courts' decisions, otherwise declared to be "final," by issuing the writ of certiorari, which remained discretionary. In 1925, Congress expanded the

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Court's certiorari JURISDICTION and reduced the availability of the writ of error (renamed APPEAL). Certiorari is today the chief mode of the Supreme Court's exercise of APPELLATE JURISDICTION. Proposals to abolish the Court's theoretically obligatory jurisdiction over appeals would leave appellate review entirely to certiorari, and thus to the Court's discretion.

By statute the Court is authorized to grant certiorari in any case that is "in" a federal court of appeals. Thus in an appropriate case the Court can bypass the court of appeals and directly review the action of the district court, as it did in the celebrated case of UNITED STATES V. NIXON (1974).

The Supreme Court's rules have long stated some considerations governing the Court's discretionary grant or denial of certiorari. Three factors are emphasized: (1) conflicts among the highest...