Choosing Which Cases The High Court Will Decide

THE Supreme Court justices are still filling their docket for the 1994-95 term. To date, they have selected only about half the cases that will be argued and decided before the term ends next summer. With the help of their law clerks, the jurists are sifting through literally thousands of petitions for review, looking for the handful of cases that, in their judgment, warrant the attention of the nation's highest court.

Under federal law, only a handful of cases reach the Supreme Court through a right of appeal from a lower court. Usually the justices have discretion whether or not to hear and decide a case.

Litigants hoping to get their cases on the high court's docket file a petition for a writ of certiorari - often abbreviated ``cert.'' The court receives about 7,000 petitions a year, but it grants cert - issues the requested writ - in just 100 to 150 cases each term.

To screen this flood of incoming petitions, most justices participate in a ``cert pool'' of law clerks who, after reviewing the petitions, summarize them in memos circulated to the participating jurists. Justice John Paul Stevens prefers to look through the petitions himself, however.

The sharp rise in cert petitions since the late 1980s can be attributed primarily to an increase in filings by criminal defendants appealing convictions. Most of these people are indigents represented by court-appointed lawyers, and the high court waives the customary filing fee.

To grant cert requires the vote of at least four justices. Since this is just one vote short of a majority, court watchers often say they can predict the court's ultimate ruling in a case in light of the issue and which justices vote for cert. (Sometimes they guess wrong, however.) In granting or denying cert, the justices do not give reasons for their decisions. Denial of cert is not a ruling on the substance of an issue and does not constitute a precedent that lower courts are bound to follow. But the practical effect of a cert denial is to uphold the ruling of the lower court.

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