Commentary: Writing A Convincing Cert. Petition When There Is No Direct Circuit Split

By Kevin Russell
on May 17, 2007 at 11:50 am

Tom has recently been writing about the state of the Court’s docket and the low number of cases granted review this Term. In this and a few subsequent posts, I am going to look at the cert. process from the other end – that is, from the perspective of a lawyer trying to get the Court to grant cert. in a particular case. In a future post, we will take a look at the cases granted by the Court this year and see if we can glean any useful insights about what made for a successful petition this Term. Today, I want to look at what good Supreme Court counsel try to do when they are unable to make a convincing showing of a substantial circuit split.

As most readers of this blog presumably know, the Supreme Court’s most important criteria for granting certiorari is the existence of a significant division of authority on an important question of federal law. The Court views its principal role as ensuring uniformity of federal law and, as a result, the vast majority of cases granted implicate circuit splits (or splits involving state courts of last resort).

That’s all well and good for the Court, but most often petitioner’s counsel does not get to pick and choose which cases to seek cert. in; she has a client who has hired her to write a cert. petition and counsel has to make the best case she can with what she has. Quite often, the decision from which she will seek cert. does not, in fact, involve any question upon which the circuits are split to any significant degree. What to do?

In too many cases, inexperienced or unskilled counsel will simply assert that there is a split anyway, relying on snippets of language in dicta of opinions addressing entirely different questions. This, in my view, is a waste of time. The Justices’ clerks are going to read the cited cases, immediately see that the assertion of a split is false, and tell the Justices so. At that point, even if there are other legitimate grounds for certiorari advanced in the petition, those arguments will be read in light of the petitioner’s diminished credibility.

There are better alternatives. For example, savvy counsel may try to view the question presented more generally or find a division of authority on a critical component of the lower court’s reasoning that would suggest an inevitable disagreement among the courts in the future. For example, former Solicitor General Drew Days, at Morrison & Foerster LLP, recently filed this petition in Klein & Co. Futures, Inc. v. Board of Trade of the City of New York, No. 06-1265, raising the question whether commodities futures commission merchants have standing to sue a commodities board under a statute that allows such suits by “a person who engaged in any transaction” on a regulated futures market. The Second Circuit held that a futures commission merchant (similar, I gather, to a stock brokerage firm on the stock market) lacks standing; only its customers may sue. The petition does not allege that any other circuit has addressed this specific question. Instead, the petition looks at the court of appeals’ reasoning and asserts that the principle premise of the court’s holding – that only customers, and not merchants, engage in “transactions” on the futures commodity exchange – conflicts with the recognition by other courts of appeals that merchants themselves are the entities buying and selling futures (albeit for the benefit of their clients). The point of the argument is to suggest that those other courts, when confronted by the question presented here, will predictably decide that specific question differently than the Second Circuit.

This form of argument is not as good as being able to show that there is a direct conflict on the specific question presented in the petition, but it is often the best one can do. At least on the split question. In such cases, however, it is critical to try to develop other grounds for certiorari, one of the most common of which is the general importance of the question. Thus, the petition in Klein (rightly, in my view) focuses not on the split (which is addressed at the end of the brief) but on the alleged consequences for the efficiency and stability of the futures market if the decision below is permitted to stand.

The difficulty with such arguments is that the Court hears them all the time – everyone thinks that their loss signals the end of human civilization as we know it, and says so in their petition. Moreover, just as the Court knows that practitioners know that splits are important in the cert. calculus (and therefore views split assertions with a grain of salt), it likewise views with skepticism self-serving claims of the importance of the question presented. There are a few ways of trying to overcome that skepticism. One is objective evidence – the Klein petition, for example, is peppered with statistics about the mind-boggling amount of money involved in the futures markets.

Another is an amicus brief from more objective parties telling the Court that the petitioner is actually right about the importance of the issue. Often, the filing of the brief and the identity of the party is as important as what the brief actually says (which is why such briefs can be quite short). In Klein, for example, petitioner was able to secure this amicus brief supporting cert. from the Futures Industry Association, represented by Christopher Landau of Kirkland & Ellis LLP. Rather than focus on the technical details of statutory construction addressed in the petition, the amicus brief (which is only 8 pages long) addresses the issue that the Court would be most interested in hearing from industry representatives about – is this ruling really going to have the bad effects petitioner says it will?

Of course, the Court is aware that groups like trade associations have their own biases and agendas. The Court will not simply accept everything they have to say at face value. But even the fact that the association has taken the time (and, presumably, the money) to file an amicus brief at the cert. stage will often at least get the case noticed and the Court taking seriously the petitioner’s claim that the case raises an important question.

Whether the petition in Klein will be granted remains to be seen (it is scheduled for a conference vote today). Petitions unable to assert clear circuit split are hard to get granted, even by very good Supreme Court counsel. But a well written petition can give a case a fighting chance when it would otherwise face truly daunting odds.