How Cases Reach the Supreme Court

Before I went to law school, I incorrectly assumed that any case could get to the U.S. Supreme Court if the lawyers decided they would just keep appealing adverse decisions. Some cases do go there as a matter of right, but by far most that get to the Supreme Court are accepted by the court upon what is called certiorari or "cert" for short. That term means review.

The court exercises its discretion to review or not review the lower court's decision to determine if that court's decision was constitutionally correct. Of course, the poor lower court, the Circuit Court of Appeals, is susceptible to ambush by the Supremes because the judges there never know what sleight of hand the Supremes might employ to declare their decision wrong or, if they get lucky, declare it right.

The same happens to federal district court judges. They ultimately answer to the Circuit Courts of Appeal who can neatly ambush them. So the pecking order from bottom to top is the federal district court, which is a trial court. Here, that is presided over by Judge Richard Smoak. Appeals of his rulings go to the Eleventh Circuit Court of Appeals in Atlanta, and its decisions in turn may or may not be heard by the U.S. Supreme Court in D.C.

Cases that perfectly illustrate the judicial flow of cases are the ones just decided by district court judges construing the constitutionality of the N.S.A.'s collection of your telephone records and mine and millions of other Americans' in what it claims is a national security interest. Others say that government has intruded too far and has breached our privacy interests protected by the constitution. Two district judges have decided the issue differently. Their decisions will be appealed to their circuit courts of appeal, and that sets up a perfect storm for the Supreme Court to accept the cases on certiorari grounds for review and the ultimate constitutionality decision.

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