Filers and practitioners talk about the “writ of certiorari” all the time. We petition for the writ, oppose the writ, evaluate the chances for the writ, and contemplate the implications of the writ. The words “writ,” “writ of cert,” and “writ of certiorari” pepper the pages of Supreme Court filings—written and read with complete understanding by everyone.
But do we really know what a writ of certiorari actually is?
What Is A Writ Of Certiorari?
I have been doing this work for a while, and I’ve never seen a writ of certiorari. Cockle Legal Briefs has printed legal briefs for over 90 years, but nobody here has ever seen a tangible document titled “writ of certiorari.” So what is this thing that we all seem to understand?
Let’s begin with what the writ of certiorari is not. Some filers will refer to their petition for writ of certiorari as their “writ.” But that is not really correct. Since a writ is issued by the Court, the filing that requests the writ cannot also be a writ.
A writ of certiorari is the command of the Supreme Court directing a lower court to send the record of the proceedings below for review by the Supreme Court. The Latin word certiorari translates as, “to be informed, apprised or shown.” The issuance of a writ of certiorari initiates the “merits” stage of the case, where the Court will closely examine the record of the case to make its decision.
Is There An Actual Document Called A Writ Of Certiorari?
The Supreme Court is an institution that cultivates and protects its long-standing traditions. So it seems like there should be some solemnized document—perhaps written on gold-edged parchment, and delivered by couriers in britches and tri-cornered caps. After all, writ is an Old English term meaning “written matter.” But in modern practice, the Court will almost never create a document that is a “writ of certiorari.”
Instead, Supreme Court Rule 16 tells us that after the Court considers the petition-stage documents, it simply enters “an appropriate order.” If the Court grants the petition for writ of certiorari, “the Clerk will prepare, sign, and enter an order to that effect and will notify forthwith counsel of record and the court whose judgment is to be reviewed.” Further, “the Clerk will request the clerk of the court having possession of the record to certify and transmit it.”
“A formal writ will not issue unless specially directed,” states Rule 16.
Eugene Gressman, a leading Supreme Court practice authority, suggests that the only reason that a formal writ might ever be needed is if, for some reason, the lower court refuses to certify and send the record. Supreme Court Practice, Ch. 14.1 (9th ed. 2007).