The certiorari process: Seeking Supreme Court review

This election explainer was written by Amy Howe. It is part of SCOTUSblog’s 2020 Election Litigation Tracker, a joint project with Election Law at Ohio State.

When the losing side in a case decided by a federal court of appeals (or a state’s highest court) wants the Supreme Court to weigh in, it files a brief (known as a “petition for certiorari” or a “cert petition”) asking the justices to grant review, hear oral argument and eventually issue a decision on the merits of the case.

The side seeking Supreme Court review is known as the “petitioner,” while the side that won in the lower court (and thus opposes Supreme Court review) is known as the “respondent.” After the petitioner files its cert petition, the respondent has 30 days to file a brief arguing that the Supreme Court should not hear the case. The justices generally consider the petition, the brief in opposition and the petitioner’s reply brief roughly a month after the brief in opposition is submitted, although there are some windows during the year – most notably, from late June until late September – when the justices do not regularly meet to consider cert petitions.

The Supreme Court will grant review and hear oral argument if at least four justices vote to do so. Once the court announces that it has granted review, the briefing process starts again; it is usually at least three months before a case is ready to be argued, and then some time after that before the justices issue their ruling.

In many election disputes involving time-sensitive challenges to election procedures, there is not enough time for a lawsuit to go through this entire process before the election has actually occurred. Of course, the justices can expedite the process at any point – for example, they heard oral argument and decided Bush v. Gore in just a few days – but that kind of fast-tracking is highly unusual. As a result, many of the court’s rulings in election-law cases come through the emergency appeal process rather than through the normal certiorari process.