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Certiorari before judgment

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A petition for certiorari before judgment, in the Supreme Court of the United States, is a petition for a writ of certiorari in which the Supreme Court is asked to immediately review the decision of a United States District Court, without an appeal having been decided by a United States Court of Appeals, for the purpose of expediting the proceedings and obtaining a final decision.

Certiorari before judgment is rarely granted. Supreme Court Rule 11 states that this procedure will be followed "only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."[1]

In some situations, the court has also granted certiorari before judgment so that it could review a case at the same time as a similar case that had already reached the court otherwise.[2]

The power to grant certiorari before judgment is provided by statute, which authorizes the Supreme Court to review "cases in the courts of appeals" by granting certiorari "before or after rendition of judgment or decree".[3] A party to the case may petition to the Supreme Court "at any time before judgment",[4] after a court of appeals has docketed the case. Only cases in a United States court of appeals are eligible, not any other court.[5] Any party can file the petition, regardless of which party originally prevailed in the district court.[6][7]

Well-known cases in which the Supreme Court has granted certiorari before judgment and heard the case on an expedited basis have included Ex parte Quirin (1942), U.S. v. United Mine Workers (1947), Youngstown Sheet & Tube Co. v. Sawyer (1952), U.S. v. Nixon (1974), Dames & Moore v. Regan (1981), Northern Pipeline Co. v. Marathon Pipe Line Co. (1982), U.S. v. Booker (2005), Department of Commerce v. New York (2019),[8] and Whole Woman's Health v. Jackson (2021).[9]

List of petitions granted

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The Supreme Court granted certiorari before judgment only three times between 1988 and 2004, and zero times from then until February 2019. Since 2019, the court has granted certiorari before judgment in more cases.[10]

Certiorari before judgment granted since 1988[10][11][a]
Case Date granted
Clark v. Roemer June 28, 1991[12]
Gratz v. Bollinger Dec 2, 2002[13]
United States v. Fanfan Aug 2, 2004[14]
Department of Commerce v. New York Feb 15, 2019[15]
Trump v. NAACP June 28, 2019[16]
McAleenan v. Vidal June 28, 2019[16]
Ross v. California June 28, 2019[17]
Harvest Rock Church, Inc. v. Newsom Dec 3, 2020[18]
High Plains Harvest Church v. Polis Dec 15, 2020[19]
Robinson v. Murphy Dec 15, 2020[20]
United States v. Higgs Jan 15, 2021[21]
Gish v. Newsom Feb 8, 2021[22]
Whole Woman's Health v. Jackson Oct 22, 2021[23]
United States v. Texas Oct 22, 2021[24]
ZF Automotive US, Inc. v. Luxshare, Ltd. Dec 10, 2021[25]
Students for Fair Admissions, Inc. v. University of North Carolina Jan 24, 2022[26]
Merrill v. Caster Feb 7, 2022[27]
Ardoin v. Robinson June 28, 2022[28]
Brnovich v. Isaacson June 30, 2022[29]
United States v. Texas July 21, 2022[30]
Biden v. Nebraska Dec 1, 2022[31]
Department of Education v. Brown Dec 12, 2022[32]
Moyle v. United States
Idaho v. United States 		Jan 5, 2024[33]

See also

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Notes

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  1. ^ Department of Homeland Security v. Regents of the University of California (2020) (cert. granted June 28, 2019) is not included in this list because although the petition was for certiorari before judgment, the court of appeals decided the case before the Supreme Court granted the petition, so that certiorari was after judgment. United States v. Windsor (2013) (cert. granted December 7, 2012) is omitted for the same reason.

References

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  • S. Shapiro et al., Supreme Court Practice (BNA Books, 10th ed. 2013), section 2.4
  • Lindgren, James; Marshall, William P. (1986). "The Supreme Court's Extraordinary Power to Grant Certiorari before Judgment in the Court of Appeals". The Supreme Court Review: 259–316. JSTOR 3109524.
  1. ^ 2023 Rules of the Supreme Court
  2. ^ Shapiro et al., Supreme Court Practice (11th ed. 2019), Sec. 2.4
  3. ^ 28 U.S.C. § 1254(1)
  4. ^ 28 U.S.C. § 2101(e)
  5. ^ Shapiro et al., Supreme Court Practice (11th ed. 2019), Sec. 6.1(b)(4)
  6. ^ Shapiro et al., Supreme Court Practice (11th ed. 2019), Sec. 2.2, p. 2-12
  7. ^ Lindgren & Marshall 1986, p. 263
  8. ^ Order list: 586 U.S. ___, Friday, February 15, 2019
  9. ^ Whole Woman's Health v. Jackson, No. 21-463.
  10. ^ a b Vladeck, Steve (January 25, 2022), "The rise of certiorari before judgment", SCOTUSblog
  11. ^ Vladeck, Steve [@steve_vladeck] (December 12, 2022). "Supreme Court Grants of Certiorari "Before Judgment": 1988*–Present" (Tweet) – via Twitter.
  12. ^ Clark v. Roemer, 501 U.S. 1246 (1991)
  13. ^ Gratz v. Bollinger, 537 U.S. 1044 (2002)
  14. ^ United States v. Fanfan, 542 U.S. 956 (2004)
  15. ^ Docket for No. 18-966, Department of Commerce v. New York
  16. ^ a b Docket for No. 18-587, Department of Homeland Security v. Regents of the University of California, consolidated with Trump v. NAACP and McAleenan v. Vidal
  17. ^ Docket for No. 18-1214, Ross v. California
  18. ^ Docket for No. 20A94, Harvest Rock Church, Inc. v. Newsom
  19. ^ High Plains Harvest Church v. Polis, 592 U.S. ___, 141 S.Ct. 527 (2020)
  20. ^ Docket for No. 20A95, Robinson v. Murphy
  21. ^ United States v. Higgs, 592 U.S. ___, 141 S.Ct. 645 (2021)
  22. ^ Docket for No. 20A120, Gish v. Newsom
  23. ^ Docket for No. 21-463, Whole Woman's Health v. Jackson
  24. ^ United States v. Texas, 595 U.S. ___, 142 S.Ct. 14 (2021)
  25. ^ Docket for No. 21-401, ZF Automotive US, Inc. v. Luxshare, Ltd.
  26. ^ Docket for No. 21-707, Students for Fair Admissions, Inc. v. University of North Carolina
  27. ^ Merrill v. Caster, 595 U.S. ___, 142 S.Ct. 879 (2022)
  28. ^ Docket for No. 21A814, Ardoin v. Robinson
  29. ^ Docket for No. 21A222, Brnovich v. Isaacson
  30. ^ Docket for No. 22-58, United States v. Texas
  31. ^ Docket for No. 22-506, Biden v. Nebraska
  32. ^ Docket for No. 22-535, Department of Education v. Brown
  33. ^ Docket for No. 23-726, Moyle v. United States
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