What happens when your petition for writ of certiorari does not contain an arguable claim of lower court conflict? The absence of a split is challenging for any Supreme Court practitioner, given that the primary reason the Court grants cert is to resolve lower court conflicts. While some petitioners attempt to create a conflict, the better practice is to emphasize other certworthy factors, including the importance of the question presented.
The petition in Encarnacion, et al, v. Astrue, No. 09-631, provides an excellent example of this strategy. The petition can be viewed here, the brief in opposition here, and the reply brief here.
At issue in Encarnacion is whether the Social Security Commissioner’s policy for determining child disability complies with Congressional instructions to consider “throughout the disability determination process” the “combined effect of all of the individual’s impairments.” 42 U.S.C. § 1382c(a)(3)(G). The petition argues that the Commissioner’s policy—failing to give weight to all of a child’s impairments when deciding disability status—flies in the face of the Court’s previous decision in Sullivan v. Zebley, 493 U.S. 521 (1990), and in contravention of the clear statutory language. The petition, however, does not contend that the lower courts are divided on the issue.
In fact, the petition straightforwardly admits the absence of a circuit conflict. Petition, at 22 (“To be sure, in this class action, there is no conflict in the circuits, nor is one likely to develop”). This is a unique strategy. Recognizing that lower court conflicts drive the Court’s docket, Supreme Court practitioners usually attempt to manufacture a conflict through creative characterization and generalization, in an effort to garner the Court’s attention. I spoke with one of the attorneys involved and he said that they deliberately conceded the absence of a lower court conflict, because one did not arguably exist. Petitioners instead decided to emphasize the importance of the question.
As the leading Supreme Court authority states, “[t]he importance of the issues involved in the case as to which review is sought is of major significance in determining whether the writ of certiorari will issue.” Gressman, E. et al., Supreme Court Practice, at 262 (9th ed. 2007). There are many ways to convey the importance of an issue (i.e., the type of issue, whether the Court has previously addressed the issue, and the number of people affected by the issue). But since no single consideration by itself is likely to convince the Court, counsel should “advance all possible reasons tending to demonstrate the importance of the issues….” Supreme Court Practice, at 263. The Encarnacion petition accomplishes this goal by advancing several reasons why the Court should grant cert despite no conflict.
The petitioners in Encarnacion first work the importance of the lower court’s opinion into the merits of the case, contending that the lower court decision directly conflicts with relevant Supreme Court precedent (i.e., Sullivan v. Zebley). Pet. at 16. Next, petitioners argue, quite persuasively, that Supplemental Security Income (“SSI”) is a “critical resource” for families whose children suffer from serious disabilities and that if the lower court decision stands, children—who are not severely impaired in one area of functioning, but substantially impaired in many areas of functioning—will not be considered disabled and thus, not receive SSI. Petitioners also argue a key point needed for any cert petition: why Court review is needed now. Because applicants for child-disability benefits generally cannot afford legal representation, if review is not granted in this case, petitioners maintain that the issue is likely to evade the Court’s review. Pet. at 22. And the petition is punctuated with this final sentence: “There is no reason to allow the decision below to stand, and Zebley to be dishonored, while thousands of disabled children are deprived of the benefits to which they are entitled.” Pet. at 23.
Rather than rehashing the same importance grounds raised in the petition, the reply brief brings forth further grounds for review. Highlighting facts from individual petitioners’ cases, the reply brief contends that those “amply demonstrate the irrational impact of the challenged policy…” Reply, at 10. Petitioners support this assertion by noting additional examples provided by Amici Curiae briefs filed in support of the petition. The cert-stage briefing ends with counsel’s contention that if the petition is not granted “the issue may evade review indefinitely, and potentially thousands of poor children will be deprived of the complete, holistic assessment that Congress intended them to have.”
To be sure, the task of arguing the importance of a question is less arduous when the topic is as compelling as child disability. But not every petition (even those with compelling subject matter) argues importance as comprehensively as the Encarnacion petition. Nor do petitions routinely concede the absence of a circuit conflict. The Encarnacion petition thus stands apart from the conventional approach and is a fine model for those presenting important questions, but no splits among the lower courts.
The Encarnacion petition is set for Conference on April 2, 2010.