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The beginning of the Supreme Court’s 2014-15 is a good opportunity to take a moment and step back to review how those headline-making cases end up there in the first place.

They all start, simply enough, with a lawsuit.  After a case is decided in Federal Court, the non-prevailing party may appeal the decision by right.  There is no discretion at that point to decline to take the case.  In the federal system, this first appeal will generally be heard by one of 11 regional Court of Appeals, each responsible for an area of the country, called a “Circuit.”  (There are also two other specialized Courts in D.C.).  So cases arising out of Florida, for example, will be heard by the Court of Appeals for the 11th Circuit.

The party who loses on appeal may then request the Supreme Court to hear the case, but the Court does not have to take it.  A bit fewer than 400,000 cases are filed in Federal Courts each year.  But only 8- to 10,000 requests, called, in good legalese, petitions for a writ of certiorari, are filed with the Supreme Court.  Moreover, several thousands of those, a substantial majority in fact, are all but spurious petitions filed pro se by prisoners in federal detention.  In the end, the Court decides about 80 cases.  Obviously, very few lawsuits end up in front of the Justices.

Taking an example from last term may be helpful to illustrate the process.  An Alabama state employee was fired after testifying in court against a political figure with clout in the community college where he worked.  He sued not only the school but also the individual who fired him, in Federal Court.  He lost against the individual based on something called Qualified Immunity.  (For more details, see our September 5th blog on public employees and the First Amendment.)  He appealed to the Court of Appeals for the 11th Circuit and lost again.

But in his case, the controversy was not over.  The Supreme Court agreed to take up the matter, to review the scope of both First-Amendment protection for public employees and qualified immunity for individuals in their employers’ hierarchy.  (As it happens, he lost again…)

But it all started with a lawsuit.

As a last word, cases filed in State Court involving both state and federal claims follow a similar path, albeit with one more step.  They must make their way following the exact same process from state trial court to first appeal to the State’s Supreme Court.  If the State Supreme Court’s decision hinges on a question of federal law, the non-prevailing party may still have one more chance, and ask the U.S. Supreme Court to hear the case.

Our next post will briefly overview how the court decides which cases to take.


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