U.S. Supremes Not Coming to Rescue Civilly Committed Sex Offenders, at Least, not Soon

United States Supreme Court announced today that it would not hear a case concerning the constitutionality of Minnesota's sexually violent predator law. The committed people won in the trial court, the State of Minnesota took it up on appeal to the United States Court of Appeal for the Eighth Circuit, which overturned the trial court. The committed people had asked the United States Supreme Court to hear it, but the high court did not. With very few exceptions, SCOTUS gets to choose the cases it wants to hear. About 7,000 to 8,000 cases are brought to SCOTUS each year that someone wants them to hear. About 80 get the full treatment-- merits briefing and oral argument, and about a 100 get some kind of ruling without oral argument, etc. The chances of SCOTUS taking any case in particular is a little more than one out of a hundred.

Today, the first Monday in October, is the beginning of the court's term for this year. The Justices' main holiday is from the end of May to September. You may ask what do the Justices do in September before the official beginning of the court's term. What they do is prepare and have the Long Conference. The Justice meet together most Fridays to choose what cases to hear and which justice will supervise the writing of court's opinion in each case. But they don't have such meetings over their summer vacation. When they come back, they have about three months' requests for cases to be taken, and they get rid of those summer requests in one long meeting-- the Long Conference in September.

On that first Monday in October, SCOTUS announces that it is taking or refusing to take about one-third of the cases for the year.

The Beaumont Court of Appeals is still responsible for far more of the appeals of sexually violent predator civil commitment matters than the other courts. If SCOTUS had taken the Minnesota case mentioned above, SCOTUS could have decided to make major changes in that law that would have affected every state, including Texas. But those old rivers, the Potomac and the Neches will likely keep on flowing the way they always have, at least for another year.

Supreme Court of the United States Justices Cannot Agree How to Pronounce "Certiorari"

From the American Bar Association Journal. I was taught to pronounce it sir-shir-RARE-ee, but intend to follow up with Latinists and forensic lexicographers with a recommendation later.

They Get to Pick What They Are Going to Hear.

Some courts can pick and choose the cases they are going to hear, at least to some extent. Others cannot. Of the on's that can, the first task of advocacy as to such a court is to convince it to hear the case in the first place. A  common rookie mistake for appellate lawyers is to try to sell the court on the basis of the enormity of the injustice below. One practically always does much better to show that the courts below are following different, inconsistent rules as to those kinds of cases, or, if that is not possible, to show that the court below did not follow the precedent of the court one is trying to get into.
What kinds of courts can pick and choose their cases? Well, except for certain types of cases mandated by the U.S. Constitution, the Supreme Court of the United States chooses which cases to hear by a vote of their members. A case that four or more of the justices want to hear gets heard. A case that less than four of them want to hear does not get heard. The Supreme Court of Texas reviews cases that four of the justices want to look at. The Texas Court of Criminal Appeals has to hear all appeals of all death cases, but otherwise, four votes or more get a case heard. Federal trial courts don't have to hear certain types of cases-- family law, for example, but the federal courts of appeals pretty much have to hear every case the federal trial courts and the agencies send up to them.
Courts that get to choose what they hear are generally more interested in standardizing the precedent used by the courts below them, than they are in correcting gross miscarriages of justice. Such courts often have judges or court below them that they are inclined to correct. SCOTUS is inclined to correct San Francisco's Ninth Circuit. SCOTX, the Thirteenth Supreme Judicial District of Corpus Christi and Edinburg. Texas's Court of Criminal Appeals, judges who hold pretrial hearings on the constitutionality of the death penalty.
Such courts are unlikely to take a case the first time an issue arises; they want to have the lower courts wrestle with it. If the lower courts agree on how to handle a matter, they've just saved the higher court pointless work. A selective higher court would generally prefer to take a case that they have the votes to overrule; that way, they don't just parrot the lower court. Realize that a higher court judge who disagrees with a lower court decision may not have the votes on his or her court to overturn it. Such a judge may not vote to hear such cases, preferring bad lower court decisions to bad higher court precedent.

Pre-Certiorari Amicus Briefs Increasingly Important in Cases SCOTUS Takes

Tony Mauro and Marcia Coyle of the National Law Journal point out the increasing role of pre-certiorari amicus briefs to get argument in the United States Supreme Court.

SCOTUS Issues More Summary Opinions Than Ever

Tony Mauro, Supreme Court reporter of the National Law Journal, reports that the Supreme Court of the United States issued 12 summary opinions this term-- the term that ended today. Chief Justice Roberts is apparently behind this. Summary dispositions avoid oral argument, which is time-consuming and expensive. Legislators appear to be critical of the high court's reduction of the number of cases it has accepted and resolved over the last few years.
Why should you care? In the past, the best practice for a petitioner for certiorari-- a person trying to get the court to hear a case-- was to minimize or ignore the merits and only argue at that stage why the court should take the case. But now for certain cases-- criminal cases where there is a statute or a strong precedent showing a clear, conspicuous error by the lower court-- a petitioner should show that, because on a summary disposition, that petition may be the only chance.

Generally, Don't Take Your Case to the United States Supreme Court Unless You Have To

7,738 cases were filed in the Supreme Court of the United States in their 2008 term, which begins in October of that year. Out of those, the Court held argument on 87. Of those, they disposed of 83. 74 of those dispositions were by signed opinions, including per curiam opinions signed by no individual justice, and the judgments in cases where the trial is in the Supreme Court. Cases the Supreme Court disposes of may be either affirmed or reversed. That is, a party could go through the whole laboriousness and expense of getting a case into SCOTUS, getting it briefed, arguing it and ending up with an affirmance making the ruling against the party in the party's case the law of United States of America.
So, if you or your client have the expectation that the Supremes are going to right the wrong in your United States Circuit or highest state court case, that expectation is practically always misplaced. Petitions for certiorari to the U.S. Supreme Court should practically always be reserved for situations in which the judgment and law of the case is utterly intolerable for your client or in which delay of finality of the ruling complained of is in your client's interest.
I'm speaking here of a necessary but not sufficient condition for advising a petition for cert. That is, advice to prepare and file a cert. petition should only be given when the legal and factual grounds exist. I hope to write more about those legal grounds in later blog posts. Be aware, and make sure that your client is aware, that more than 98 out of every 100 filings are never taken up at all.