Certiorari before judgment

A petition for certiorari before judgment, in the Supreme Court of the United States, is a petition for a writ of certiorari in which the Supreme Court is asked to immediately review the decision of a United States District Court, without an appeal having been decided by a United States Court of Appeals, for the purpose of expediting the proceedings and obtaining a final decision.

Certiorari before judgment is rarely granted. Supreme Court Rule 11 states that this procedure will be followed "only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."^[1]

In some situations, the court has also granted certiorari before judgment so that it could review a case at the same time as a similar case that had already reached the court otherwise.^[2]

The power to grant certiorari before judgment is provided by statute, which authorizes the Supreme Court to review "cases in the courts of appeals" by granting certiorari "before or after rendition of judgment or decree".^[3] A party to the case may petition to the Supreme Court "at any time before judgment",^[4] after a court of appeals has docketed the case. Only cases in a United States court of appeals are eligible, not any other court.^[5] Any party can file the petition, regardless of which party originally prevailed in the district court.^[6][7]

Well-known cases in which the Supreme Court has granted certiorari before judgment and heard the case on an expedited basis have included Ex parte Quirin (1942), U.S. v. United Mine Workers (1947), Youngstown Sheet & Tube Co. v. Sawyer (1952), U.S. v. Nixon (1974), Dames & Moore v. Regan (1981), Northern Pipeline Co. v. Marathon Pipe Line Co. (1982), U.S. v. Booker (2005), Department of Commerce v. New York (2019),^[8] and Whole Woman's Health v. Jackson (2021).^[9]

List of petitions granted

The Supreme Court granted certiorari before judgment only three times between 1988 and 2004, and zero times from then until February 2019. Since 2019, the court has granted certiorari before judgment in more cases.^[10]

Certiorari before judgment granted since 1988^[10]^[11]^[a]

Case	Date granted
Clark v. Roemer	June 28, 1991[12]
Gratz v. Bollinger	Dec 2, 2002[13]
United States v. Fanfan	Aug 2, 2004[14]
Department of Commerce v. New York	Feb 15, 2019[15]
Trump v. NAACP	June 28, 2019[16]
McAleenan v. Vidal	June 28, 2019[16]
Ross v. California	June 28, 2019[17]
Harvest Rock Church, Inc. v. Newsom	Dec 3, 2020[18]
High Plains Harvest Church v. Polis	Dec 15, 2020[19]
Robinson v. Murphy	Dec 15, 2020[20]
United States v. Higgs	Jan 15, 2021[21]
Gish v. Newsom	Feb 8, 2021[22]
Whole Woman's Health v. Jackson	Oct 22, 2021[23]
United States v. Texas	Oct 22, 2021[24]
ZF Automotive US, Inc. v. Luxshare, Ltd.	Dec 10, 2021[25]
Students for Fair Admissions, Inc. v. University of North Carolina	Jan 24, 2022[26]
Merrill v. Caster	Feb 7, 2022[27]
Ardoin v. Robinson	June 28, 2022[28]
Brnovich v. Isaacson	June 30, 2022[29]
United States v. Texas	July 21, 2022[30]
Biden v. Nebraska	Dec 1, 2022[31]
Department of Education v. Brown	Dec 12, 2022[32]
Moyle v. United States Idaho v. United States	Jan 5, 2024[33]

See also

• Leapfrog appeal, the equivalent in England & Wales and in Ireland
• Procedures of the Supreme Court of the United States
• Shadow docket

Notes

1. Department of Homeland Security v. Regents of the University of California (2020) (cert. granted June 28, 2019) is not included in this list because although the petition was for certiorari before judgment, the court of appeals decided the case before the Supreme Court granted the petition, so that certiorari was after judgment. United States v. Windsor (2013) (cert. granted December 7, 2012) is omitted for the same reason.

References

• S. Shapiro et al., Supreme Court Practice (BNA Books, 10th ed. 2013), section 2.4
• Lindgren, James; Marshall, William P. (1986). "The Supreme Court's Extraordinary Power to Grant Certiorari before Judgment in the Court of Appeals". The Supreme Court Review: 259–316. JSTOR 3109524.

1. 2023 Rules of the Supreme Court
2. Shapiro et al., Supreme Court Practice (11th ed. 2019), Sec. 2.4
3. 28 U.S.C. § 1254(1)
4. 28 U.S.C. § 2101(e)
5. Shapiro et al., Supreme Court Practice (11th ed. 2019), Sec. 6.1(b)(4)
6. Shapiro et al., Supreme Court Practice (11th ed. 2019), Sec. 2.2, p. 2-12
7. Lindgren & Marshall 1986, p. 263
8. Order list: 586 U.S. ___, Friday, February 15, 2019
9. Whole Woman's Health v. Jackson, No. 21-463.
10. Vladeck, Steve (January 25, 2022), "The rise of certiorari before judgment", SCOTUSblog
11. Vladeck, Steve [@steve_vladeck] (December 12, 2022). "Supreme Court Grants of Certiorari "Before Judgment": 1988*–Present" (Tweet) – via Twitter.
12. Clark v. Roemer, 501 U.S. 1246 (1991)
13. Gratz v. Bollinger, 537 U.S. 1044 (2002)
14. United States v. Fanfan, 542 U.S. 956 (2004)
15. Docket for No. 18-966, Department of Commerce v. New York
16. Docket for No. 18-587, Department of Homeland Security v. Regents of the University of California, consolidated with Trump v. NAACP and McAleenan v. Vidal
17. Docket for No. 18-1214, Ross v. California
18. Docket for No. 20A94, Harvest Rock Church, Inc. v. Newsom
19. High Plains Harvest Church v. Polis, 592 U.S. ___, 141 S.Ct. 527 (2020)
20. Docket for No. 20A95, Robinson v. Murphy
21. United States v. Higgs, 592 U.S. ___, 141 S.Ct. 645 (2021)
22. Docket for No. 20A120, Gish v. Newsom
23. Docket for No. 21-463, Whole Woman's Health v. Jackson
24. United States v. Texas, 595 U.S. ___, 142 S.Ct. 14 (2021)
25. Docket for No. 21-401, ZF Automotive US, Inc. v. Luxshare, Ltd.
26. Docket for No. 21-707, Students for Fair Admissions, Inc. v. University of North Carolina
27. Merrill v. Caster, 595 U.S. ___, 142 S.Ct. 879 (2022)
28. Docket for No. 21A814, Ardoin v. Robinson
29. Docket for No. 21A222, Brnovich v. Isaacson
30. Docket for No. 22-58, United States v. Texas
31. Docket for No. 22-506, Biden v. Nebraska
32. Docket for No. 22-535, Department of Education v. Brown
33. Docket for No. 23-726, Moyle v. United States