Understanding the Writ of Certiorari

What is a Writ of Certiorari?

A writ, in common law, is a formal written order, specifically issued by a body with judicial or administrative jurisdiction; in modern times, these bodies are typically a court system. As a result of this definition, all warrants, subpoenas and prerogative writs are common forms of writs.

A writ of certiorari is a type of writ, which specifically seeks a judicial review; the action, in modern times, currently necessitates the issuance of an order by a higher court to direct a lower court, a public authority or tribunal to send the record in a given case for review. In the United States, a writ of certiorari is typically seen as a formal written order that the Supreme Court of the United States issues to a lower court, to affirmatively review the lower court’s judgment for legal or reversible error.

When this action is consummated, the lower court is required to review the particular case, primarily where no appeal is available, as a matter of right. This simply means that the Court system was required to issue a decision in each of those cases, as a means of preventing a backlog for the United States Supreme Court.

Writ of Certiorari according to Administrative Law:

In the context of administrative law, the common law writ of certiorari was historically used by the lower court system in the United States for judicial review of all decisions made by an administrative body or agency following an adversarial hearing. Some states have retained this policy of the writ of certiorari in the local court system, while others have replaced it with an amended statutory procedure. In the federal court system, the use of the writ of certiorari has been abolished and since replaced by a civil action under the Administrative Procedure Act in a United States district court or in some rare cases, for review in a court of appeals.

Writ of Certiorari Development:

The majority of cases cannot be appealed to the United States Supreme Court as a matter of right; this prevention was affirmed following the passing of the Judiciary Act of 1925 and the Supreme Court Case Selections Act of 1988. Any party who wishes that the Supreme Court review a decision of a federal or state court must file a petition for a writ of certiorari in the Supreme Court. The petition is printed in booklet format and 40 copies are filed with the Court system. If the Court grants the filing of the petition, the case will be schedule for the filing of briefs and then for an oral argument.

To be processed, a minimum of four of the nine Justices on the Supreme Court must grant the writ of certiorari. That being said, the court system will deny the majority of petitions and thus leave the decision to be rendered by the lower courts.