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The great myth about seeking certiorari in the Supreme Court is that every petition has around a 5 percent chance of being granted. Although the justices now grant roughly that proportion of the “paid” petitions presented to them each term (80 out of 2,000), the real odds can be much lower or much higher, depending on the case. Filing for cert is not the crapshoot it sometimes seems. The great majority of petitions — those that do not present a direct conflict of law among circuit courts or any overwhelmingly compelling reason supporting Supreme Court review — have absolutely no chance of being granted at all. But the odds for the remaining few are realistic, sometimes well above 50-50. Ultimately, lawyers need to do a much better job screening out cases that should not be pursued to the Supreme Court. For its part, Congress needs to do much more to eliminate circuit conflicts, freeing the justices to hear more important cases. WHAT THE COURT WANTS TO HEAR Lawyers seem to recognize, at least in principle, that the Court generally grants cert to resolve conflicts between the circuits (or with state supreme courts). Far more than half of all the paid cert petitions allege such a conflict. But lawyers are deluding themselves and their clients in thinking that the supposed “conflicts” presented by these cases have any real chance of triggering Supreme Court review. The justices’ definition of a “conflict” is very narrow. They are looking for cases in which two courts (preferably, several courts) have decided precisely the same dispositive question on basically indistinguishable facts. More than 80 percent of the petitions granted during this term fit this very strict definition of a conflict. Some presented broadly important questions on which the lower federal courts had been squarely divided for a long time, such as the proper standard for applying the Racketeer Influenced and Corrupt Organizations Act to corporations and their officers and for determining who is a “supervisor” under the National Labor Relations Act. (As an example, see Cedric Kushner Promotions v. King, No. 00-549, and NLRB v. Kentucky River Community Care Inc., No. 99-1815.) The questions in some other petitions were, frankly, of less than earth-shattering importance — particularly in the far corners of tax and maritime law — but the Court nonetheless agreed to hear them because of a direct conflict. The Court regularly passed by (at least 1,000 times this term) petitions that claimed more abstract conflicts — over the “approach” to a general legal question or with decisions interpreting “similar” statutes. Because so many petitions do present direct conflicts, the justices regularly reject these less-compelling claims for Supreme Court intervention. Counsel also often stretch to identify direct circuit conflicts that are involved only tangentially, if at all, in their case. That approach doesn’t meet with much success. Of course, not every case the Court agrees to hear involves a circuit conflict. Some are exceedingly important cases in which only the Supreme Court can provide needed guidance. The Court may be looking for cases of truly extraordinary significance — Bush v. Gore is a memorable example. The justices may grant cases that present fundamental questions about regulatory statutes with widespread and direct impact on Americans — such as new telecommunications legislation — or that can only arise in a single court of appeals, most often, the U.S. Court of Appeals for the Federal Circuit. The Supreme Court will also hear a case in which the lower court has held a federal statute unconstitutional, but almost all those petitions are filed by the solicitor general rather than private lawyers. Very rarely, the Court will grant cert to reverse (sometimes summarily) a totally inane court of appeals’ decision. Think of No. 00-1073, Owasso Independent School District v. Falvo, the 10th Circuit’s decision that federal law prohibits students from grading each other’s papers. The justices granted cert on that one last week. Unfortunately, this last group of cases encourages lawyers who strongly believe in their cases to file cert petitions that, as a practical matter, have no real chance of being granted. CONGRESS NEEDS TO ACT One obvious lesson from these statistics is that lawyers should be much more reticent to spend their clients’ money in filing for cert. Three-quarters of all the petitions are doomed from the start, and indeed the justices give them the back of their collective hand. Often, petitions don’t present any plausible basis for review. Lawyers regularly ask the Supreme Court to consider how settled law applies to the facts of their case or even to decide questions of state law. Really, does anyone believe the Court would review an unpublished 2nd Circuit decision applying New York’s statute of frauds? But a cert petition was filed on June 6 in Khreativity Unlimited Inc. v. Mattel Inc., No. 00-1844. But the incentives against filing are weak, and the additional investment required to file a petition after already litigating the case in two lower courts can be small. Often, counsel will conclude that it is worth the effort because, after all, 5 percent of petitions get granted. But the reverse is true as well. Many times, lawyers fail to file petitions that would be granted. My best estimate is that there are more than 2,000 outstanding conflicts of federal law, the great majority of which the Supreme Court would agree to resolve if given the chance. And the number seems to be expanding without end. Many times, it seems, there just isn’t enough at stake for the losing party in a case that presents an actual circuit conflict to seek cert. Or the lawyer thinks that the odds are only 5 percent, and therefore are not worth it. Supreme Court review is also often eluded when circuit courts decide a case on multiple independent grounds, only one of which involves a circuit conflict. The unfortunate, if little discussed, result is that the Supreme Court is not making any real progress toward eliminating conflicts. The Court should give more attention to cases involving unresolved issues of abiding national importance, particularly constitutional questions, even if a concrete conflict has not yet emerged. Given the Supreme Court’s inability to bring order to federal law riddled with conflicts, Congress needs to step in. It is often suggested that Congress write clearer statutes, which makes perfect sense. But Congress ought to make a concerted effort to tackle existing conflicts directly. For example, a special committee could easily draft proposals to resolve the thousands of disagreements that the courts of appeals have already identified. And Congress is clearly the better institution to tackle this effort. After all, the Supreme Court itself can only attempt to divine Congress’ intent. Ultimately, the justices are called on to make policy choices, but they are unelected and they lack the ability to take evidence or hear witnesses on what the right result should be. Freed from the obligation to resolve many conflicts of lesser importance, the justices could focus their attention on important constitutional cases. The Court and our system of government would be the better for it. D.C. practitioner Thomas Goldstein served as counsel to a party in 10 of the 79 cases that the Supreme Court decided this term. He is a student of the Court and close observer of circuit splits. He selects cases for inclusion in “Conference Call,” a regular feature of American Lawyer Media that highlights cases in line for Supreme Court review.

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