The Supreme Court Is More Likely to Consider Reviewing a Case if _____
Artigos
LUIZ HENRIQUE DINIZ ARAÚJO * luizdinizaraujo@hotmail.com
Faculdade Boa Viagem/Devry, Brasil
Constitutional Law effectually the earth: judicial review in the U.s.a. and the "writ of certiorari"
Revista de Investigações Constitucionais , vol. 7, no. 1, pp. 189-204, 2020
Universidade Federal do Paraná
Received: 20 May 2020
Accustomed: 28 Baronial 2020
Abstract: This paper exploring the writ of certiorari in the U.s.a. Constitutional Law is the second of the series "Constitutional Law Around the Earth". This section of the series focuses on "Judicial Review and the Filters to Access Supreme and Constitutional Courts". The commencement paper in the row, published in the yr 2019, analyzed the Constitutionality Priority Question (Question Prioritaire de Constitutionnalité - QPC) in France. In this second newspaper, we analyze how the U.S. Supreme Court picks cases from thousands that attain information technology every year and the strategies that the Court adopts to filter these cases. The paper focuses specifically on Rule ten, the "writ of certiorari" and their operation in exercise.
Keywords: judicial review, U.Due south. Supreme Court, admission filters, Rule 10, writ of certiorari.
Resumo: Este artigo, analisando o "writ of certiorari" no Direito Constitucional dos Estados Unidos, é o segundo da série "Direito Constitucional ao Redor do Globo". Esta parte da série tem por foco "O Controle Judicial de Constitucionalidade due east Filtros de Acesso a Cortes Constitucionais e Supremas". O primeiro trabalho, publicado no ano de 2019, tratou da Questão Prioritária de Constitucionalidade na França (Question Prioritaire de Constitutionnalité - QPC). Neste segundo trabalho, analisa-se como a Suprema Corte dos Estados Unidos seleciona casos entre os milhares que lhe chegam todos os anos, bem como every bit estratégidas que a Corte adota para filtrar esses casos. O artigo tem por foco específico a Dominion 10, o "writ of certiorari" e a sua utilização na prática constitucional norte-americana.
Palavras-chave: controle judicial de constitucionalidade, Suprema Corte dos Estados Unidos, filtros de acesso, Rule 10, writ of certiorari.
one. INTRODUCTION
This paper exploring the writ of certiorari in the United states of america Constitutional Constabulary is the 2nd of a series named "Ramble Law Around the Earth". This department of the serial focuses on Judicial Review and the Filters to Access Supreme and Constitutional Courts. The kickoff paper in the row, published in the year 2019, analyzed the Constitutionality Priority Question (Question Prioritaire de Constitutionnalité - QPC) in France.one
The intention of this chapter on filters to Constitutional and Supreme Courts is shed light on specifics of the systems under scrutiny, likewise every bit their apex courts and how a case can be granted permission to be decided, in a time when judicial review is an of import feature within many contemporary democracies.
This inquiry is especially fascinating in our times because the means and filters to a case upwardly to a Supreme or Ramble Court can define the extent and shape of constitutional and key rights in a specific jurisdiction. If in i hand the existence of filters is necessary in order to keep away from supreme courts footling cases, on the other hand they cannot be so restrictive that keep relevant ramble cases away from the courts of concluding resort.
From the xxth century on, courts (particularly Supreme and Ramble Courts) have gained ability in deciding constitutional and even political cases, such as in South Korea, South Africa, New Zealand, U. S., the European Court of Justice and the European Courtroom of Man Rights.two
In contempo decades, also Latin America has experienced the empowerment of courts. Within this broader context, Constitutional Courts accept been adopted (Republic of chile in 1981; Colombia in 1991; Peru in 1993; Equador in 1996; Bolívia in 1998) or have gained power (Brazil in 1988; Costa Rica in 1989). As a consequence, judicialization of constitutional fundamental rights and judicial review have been in rise.3
In Brazil, there is a certain consensus among scholars, attorneys, justices, judges and lawyers in full general that the growth in importance and number of cases in Brazilian Supreme Courtroom demands reforms in order to block "unimportant" or niggling constitutional matters from reaching the High Court. One of these proposals is to rebuild the filters to access the Highest Cout in the diffuse model of Brazilian judicial review4.
In this broad context, Brazilian Supreme Court (and also the lower courts and judges) has been playing a very important role in the democratic process. This has lead to many of import decisions involving gay marriage,v abortion,6 assisted suicide, the reform of the social security system, the reform of the political system, all sorts of ecology cases, revenue enhancement matters, educational matters,7 criminal law matters, amidst others.
In this series, our aim is to proceed with coming papers exploring filters in other ramble systems, culminating with the analysis of the filters in Brazilian Constitutional Constabulary in comparative perspective with the other systems composing the series.
In this specific paper, we will be analyzing how the U.S. Supreme Court picks cases from thousands that reach it every year and the strategies that the Court adopts to filter these cases. It will be demonstrated how the relation "number of cases chosen/number of cases filed" has historicaly decreased over the decades every bit a result of several reforms that culminated wiht Rule 10 in 1988. This Dominion sets some standards but in practical grounds gives broad discretion for Supreme Court Justices to decide which cases they consider worth a decision or non. In this context the writ of certiorari, major focus of this newspaper, is a primal device.
The problem nether scrutiny is the issue of filters to access Supreme and Constitutional Courts. In one paw scholars argue that these filters should non exist so strict that block or make too difficult a decision in a case; on the other hand, they cannot be excessively loose in order to vulgarize the decisions of apex courts or fifty-fifty let the size of their docket to an almost unmanageable indicate.
The aim of the section Judicial Review of the Series Ramble Law Around the Earth is to analyse filters in different constitutional systems in club to identify some of its vices and virtues and, in the terminate, produce a final paper approaching the theme of the filters to Supreme and Constitutional courts in a comparative perspective.
The hypothesis of the series is that the filters of access are important devices to exist used aiming to balance the access to courts of last resort with the goal of permiting constitutional and supreme courts to decide on constitutionally important matters in a number that allows a manageable docket size, in order to preserve the quality of decisions and the organisation integrity.
The methodology used is consultation of references.
2. JUDICIAL REVIEW AND THE SUPREME COURT IN THE UNITED STATES CONSTITUTIONAL Police
Differently from many other north american legal traditions, that were strongly influenced past the British Police, judicial review in the Usa was a creation with lilliputian antecedents in Britain. It is broadly known that judicial review is not present in the U.S. ramble text and it is commonplace that it was created by Chief Justice John Marshall of the United states Supreme Court (or but SCOTUS) in the year 1803, in Marbury five. Madison.viii Nevertheless, judicial review has a much more remote origin. In the U.S., Courts exercised judicial review even before the enactment of the U.Due south. Constitution in the end of the XVIII Century.
In well-known cases and others already forgotten, over the last two certuries courts in the United states accept declared federal and country statutes constitutional, agencies acts, Presidential acts, also equally competences of state and local governments. Thus, over the centuries, judicial review has deferred to the U.S. Constitution a more applied than but rethorical forcefulness.nine
In the U.Southward. Constitutional Constabulary, there were 4 potential candidates to the title of concluding arbiter of the U.S. Constitution: Congress, the President, States and Courts. Due to historical reasons, each of the three first options was rejected, making courts final interpreters of the Constitution.x
In U.Southward. Law, every land or federal courtroom has the authority to make up one's mind on ramble matters. However, all those decisions are subject to ultimate review by the Supreme Court of the United States, equanimous by 9 justices. The President, Congress, state legislatures, governors, country courts, state and federal administrative agencies,11 public officials, and all ordinary citizens are subject to the authorisation of the Supreme Court`south decisions.12
Nigh all cases the Supreme Courtroom is to determine must first of all be granted a writ of certiorari by four of the nine justices, as it will exist explained adjacent.
iii. THE WRIT OF CERTIORARI
Explained before long, the manner for a case up to the United States Supreme Court starts after it is decided in a Courtroom of Appeals, a State Supreme court or other court of concluding resort. The losing party has to file a petition for a writ of certiorari to the Supreme Court ("cert petition").
The respondent, then, has the right to file a cursory in opposition to the writ, just she may simply waive her correct to file a brief and wait to see if the Court requests i by ways of a "call for response" or simply "CFR". If the respondent files an opposition brief, the petitioner has the right to file a respond brief before the Court considers whether or not to grant certiorari.13
The Court may also invite the Department of Justice, through the Solicitor General of the United States (the "SG"), to file a brief analyzing the petition, a procedure named every bit a "call for the views of the SG," or "CVSG."14
This is a short caption of the process that tin can open the Supreme Courtroom doors to decide a example. It has not e'er been like this, though.
3.i. A brief History
During the outset century since its foundation, the United states of america Supreme Courtroom did not take the power to choose the cases information technology would decide. Actually, the Judiciary Act (1789) enacted past Congress established that the Supreme Court would have appellate jurisdiction on several decisions from the federal circuit courts and state courts decisions that defeated rights set upwardly by the appellant under the Constitution, laws or treaties of the United States15.
In 1891, Congress passed the Circuit Courts of Appeals Human activity, a response to an unmanageable increase of the Court`s caseload. At the beginning of the 1890 Term, the justices had a rollup of 1,800 cases. According to the Circuit Courts of Appeals Act, a new set of federal courts of appeals was created (the circuit courts of appeals). These circuit courts had appellate jurisdiction on various classes of decisions previously directly appealable to the Supreme Courtroom.sixteen
Some of the circuit courts' decisions were, in plough, appealable to the Supreme Court. However, other classes of cases were decided past the excursion courts of appeals in a definitive fashion, except if the Supreme Court required past certiorari or otherwise the power for its review. This was the showtime for a deep shift in the Supreme Court's role.
In the decades to come, there was a tendency towards reducing the Courts`s mandatory jurisdiction. The justices themselves demanded and some even lobbied in favor of greater discretionary power.
In 1925, with the passage of the "Judges' Beak", an sometime dream of then Chief Justice Taft, became true. All decisions by the federal appellate courts would from then on exist terminal and only reviewable by certiorari. The Courtroom'southward ability to discretionarily fix its own calendar turned it from a neutral arbiter and interpreter of policy into an agile participant in policy making. Finally, the Judiciary Act enacted by Congress in 1988 nigh eliminated the Courtroom's mandatory appellate jurisdiction.17
Present, the Supreme Courtroom'south appellate jurisdiction is about completely discretionary through the writ of certiorari. The Court's mandatory appellate jurisdiction is established only on final judgments past three-judge commune courts, required by statute for a few classes of cases, and last judgments by single-estimate district courts in certain antitrust decisions.
The vast majority of the cases the Courtroom hears come up from its certiorari docket and the Court only hears a tiny minority of them. From approximately seven,000-eight,000 certiorari petitions filed every year, the Court grants review to as much equally about fourscore-90 each twelvemonth.18 How come? What are the rules and criteria regulating the grant of a certiorari?
three.two. Certiorari and Rule 10
Today, Rule 10 of the U.S. Supreme Court establishes broad parameters for granting a writ of certiorari. It states that
Review on a writ of certiorari is not a thing of right, just of judicial discretion. A petition for a writ of certiorari volition be granted only for compelling reasons. The post-obit, although neither decision-making nor fully measuring the Court'due south discretion, indicate the character of the reasons the Courtroom considers:
(a) a U.s.a. court of appeals has entered a conclusion in conflict with the conclusion of another Usa court of appeals on the same important affair; has decided an important federal question in a way that conflicts with a conclusion past a state courtroom of last resort; or has then far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower courtroom, equally to phone call for an exercise of this Court's supervisory power;
(b) a country court of last resort has decided an of import federal question in a way that conflicts with the conclusion of another state court of terminal resort or of a U.s. court of appeals;
(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an of import federal question in a manner that conflicts with relevant decisions of this Court.
A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.19
Scholars accept argued that these rules are insufficiently precise. In the end, the broad discretion of the Supreme Court power in granting certiorari strikes i`southward attending.twenty The result is that while the number of cases decided by the federal courts and coming earlier the Supreme Court grew steadily since 1925, the number of cases the Court decides has gone in the contrary direction.
Actually, the Supreme Court's plenary docket in 2004 was half the size it was in 1986 whereas the dockets of the federal excursion courts have increased by 82.4% during the aforementioned period. During the 1947 Term, the Supreme Court decided 143 cases by written, signed opinion (about 11 percent of its docket); in 1967, it decided 155 cases by written, signed opinion (about four percentage of its docket); in 1987, the Court decided 151 cases by written, signed stance (nigh three per centum of its docket); in 2007, the Courtroom decided only 72 cases by written, signed stance (less than 1 pct of its docket).21
Arguing a case before the Supreme Court of the U.s. ends upwards being one of the most prestigious accomplishments in the American Bar. The adventure to argue before the SCOTUS opens doors to loftier-paying opportunities and litigating issues of national importance22, so difficult it is to get a example accepted to be decided.
3.3. Some pros and cons of the certiorari
Quite controversial amidst scholars and lawyers, the certiorari has its defendants and contendors.
Its defendants listing as advantages of the certiorari: (i) it is easier for the Supreme Court to alter its interpretation of the Constitution; (two) the Court can spend fourth dimension on matters that are supposedly very important in order to receive a decision; (iii) the Supreme Court is allowed to arbitrate selectively. As a articulate outcome, certiorari has a decisive role in shaping U.S. substantive ramble law23. Some scholars argue that the Supreme Court's power to set up its agenda may exist even more important the substance of its decisions.24
On the other hand, important scholars and lawyers disagree from the core argument that certiorari allows the courtroom to pick only important cases.25 This is based on the idea that the legal organisation would be ameliorate off if the Supreme Court decided some ordinary legal questions resolved by lower courts routinely. This would have the advantages of (i) keeping justices informed almost statutes, regulations and even how the courts of appeal and state courts' decisions operate on practical grounds; (two) constraining lower courts on these "unimportant matters", because a Supreme Court review would be possible at least theoratically. Information technology would equally a consequence brand lower courts more accountable for their own decisions.26
At that place are some other questions raised critically: how can cert power be reconciled with the classic justification for judicial review? How can a court with such power claim to be exercising judgment rather than volition, and is such a power consistent with the dominion of police force? Tin this power be justified every bit a form of administrative rather than judicial power?27
iv. THE CRITERIA/STRATEGIES FOR THE SELECTION OF CASES IN PRACTICE
Is has been mentioned that today the Supreme Court of the United States has about boundless power to determine which cases it will hear. Since 1988, the Court has nigh a limitless power to set its own calendar and a decrease in number of cases granted certiorari is verified, despite promises by the fourth dimension of the enactement of Rule x that certiorari in constitutional cases merely would be denied when the decision aimed to exist reviewed was conspicuously correct.
Certainly, the Courtroom has the discretion of selecting the cases it considers worth deciding. But, in practice, can be institute in the SCOTUS case-load patterns that drive the grant of certiorari?
In order to reduce the thousands of certiorari petitions to the small number of granted cases the Court has developed diverse internal mechanisms. 1 of them is institutional. Since 1972, many justices have combined the efforts of their chambers in the "cert pool". Petitions divided among the chambers of participating justices are distributed to police force clerks in order to set up a memorandum for each petition with a recommendation to be shared with the other justices and their clerks. Created at the suggestion of Justice Powell, today seven of the nine judges participate in the "cert pool".
Some other mechanism is substantive. Instead of an statement of all-things-considered about a case, criteria accept been identified in order to justify a grant of certiorari and they are summarized on Dominion 10.28 Nevertheless, how exercise that Rule`s broad terms operate in practical grounds?
Following the initial review processes in the cert pool, petitions are gear up for discussion in conference. A first pace later on that is the creation by the Chief Justice of a "hash out list" that is complemented past a so-called "dead listing". Both lists grade the basis for the "Friday Conference", when all justices will discuss matters submitted for review. Cases that are not part of the lists are not voted on.
Justices then present their views on the "cert-worthiness" in guild of seniority. The "vote of 4" allows a minority of four justices out of the nine to select cases to be further decided past the Supreme Court. The vote is generally not publicized. Because of that, reasons why cert is denied are not available to the public. 29
Although it is non usual, justices are allowed to dissent from the deprival of certiorari or to brand statements respecting it. The dissenting opinions are a kind of dicta. They show that the denial was hard fought, besides playing the role of an invitation for litigants that are thus aware that if circunstances materially alter, petitioners tin can endeavour to bring the issue again to the Supreme Court.30
It is no like shooting fish in a barrel task to predict which cases will be granted certiorari. The courtroom`s procedure for petition selection is not clearly understood. Litigants and analysts try to find signals that can shed some light on the matter, for example: (i) if the Court calls for a response, does it mean that the example is more than likely to be heard? (two) what if the Court asks for the Solicitor General's views? 31
Actually, it can be said that the major criteria for selection of cases is split up in lower courts32. Thus, if ii courts of appeals decided the same outcome differently, the grant of certiorari is more probable. In these cases, the Supreme Court aims geographic uniformity in federal law.33 It is a quest for universality in law that seems cardinal to the Supreme Court.
The Court's emphasis on splits is often attributed to the important role of law clerks. Clerks are normally inexperienced young lawyers who are usually only a year or two out of law school and, as such, need objective criteria. Excursion splits is quite a verifiable one. The creation of the cert pool has caused an increase in the importance of circuit conflit, a trend that spread to nonpool clerks.34
The presence of the United States government every bit petitioner or amicus seem to play a relevant role, too.35 Some other important factor is the compliance by the federal courts to the Supreme Court decisions.36 Other scholars fence that the outcome-prediction as well plays an importante role. They hateful that justices follow an outcome-prediction strategy, voting to grant certiorari for cases they wait to win and denying cert for cases they wait to lose in the merits.37 On the other paw, the Court will near never grant plenary review in a case without a response on file.38
The participation of the Solicitor General or other amicus briefs is also relevant. SCOTUS grants more than half of the petitions filed by the solicitor general, whereas simply three% for other petitions in paid cases. The presence (and quantity) of amicus briefs can indicate that an issue is important.39
In contrast, petitions seeking merely "error correction" seldom receive a cert grant, despite Rule 10 states that the Supreme Court should take into consideration when evaluating certiorari petition if the lower cout decision contradicts a Supreme Courtroom precedent.40 Thus, such use of certiorari is really rare and only granted when the Court considers the need to correct egregious errors.41 According to Dominion x, a "[a] petition for a writ of certiorari is rarely granted when the asserted fault consists of erroneous factual findings or the misapplication of a properly stated rule of constabulary".
This large picture, nonetheless, oversees the fact that certiorari standards vary considerably depending on the justice. Records show that unlike justices may consider relevant different aspects to take into consideration when voting on certiorari issues. This variation may depend on the conception the justice has on the Court and/or underlying judicial philosophy.42
Some scholars argue that the considerable variation in the certiorari docket is not influenced by the ideological altitude betwixt the Supreme Court and the lower courts, nor by the internal partitioning within the lower courts. They contend that the justices' preferences appear to play the crucial role in determining the size of the Court'south docket.43
From each individual justice standpoint, scholars have identified ii strategies: (i) the "fault correction strategy" - a justice who intends to reverse the decision of the lower court probably will vote to grant certiorari, whereas a justice who is satisfied with the lower court conclusion will probably vote to deny certiorari; (two) the "outcome prediction strategy" - arguing that justices who want to assert the decision of the lower court are more likely to vote to grant certiorari when they will likely win at the final vote.44
Certainly, Rule 10 terms are broad and this gives justices a good share of discretion when evaluating certiorari matters. Yet, there has been a growing perception among justices over time that many cases decided past the Supreme Courtroom actually did not deserve to be heard. They should only end at the appeal level. Over time, there has been a merits that a decision past the Supreme Court should happen when an overarching motive is present, stressing its power to rule on problems of large legal or policital significance and to supervise the federal courts. This would assert it every bit an actual constitutional court.
5. PROPOSALS FOR REFORM
Proposals to reform the certiorari have proliferated in contempo years, such as: (i) the cosmos of a "certiorari sectionalization" composed of non-Supreme Court judges to select cases for the Courtroom's docket; (ii) bring back the "certification" process, whereby federal circuit courts could certify legal questions to the Supreme Courtroom; (iii) some urge Congress to redesign the Supreme Court to make it piece of work more like the U.S. courts of appeals, with more than justices, decisions heard by panels, and an "en banc" procedure45; (iv) add senior lawyers to the Court's staff to assist the justices and their clerks in selecting cases46.
At that place is likewise another proffer of reform that goes in a direction other than improving the process of selecting "important" cases. This proposal, named "the lottery docket", intends to supplement the Supreme Courtroom's docket by giving information technology jurisdiction over a new set of cases to exist selected from the concluding decisions of circuit courts and entered into the court. The appellant and appellees would take the opportunity to file their briefs and the Supreme Court would exist obliged to rule, just like a excursion court47.
The benefit of the supplementation of the Court`s certiorari with a lottery docket would exist, according to the proposal: (i) informational - the Supreme Court would be exposed to cases that would never pass the certiorari; (ii) greater accountability - in theory, every example decided by circuit courts would be candidates to be reviewed by the Supreme Court; (iii) bring important cases before the Court that never would pass the certiorari48.
vi. CONCLUSION
Every bit it was asserted in the introduction of this paper, this text is role of a series of papers that analyzes Constitutional and Supreme courts around the world specially focusing on the filters and procedures raised in order to let (or rather impede) a case to reach the noon courts of a legal system.
Following this path, this is the second newspaper of the series and sheds low-cal on the writ of certiorari of the Us. This paper was preceded past some other piece of work that explores the filters to the Constitutionality Priority Question in the French Constitutional System. The next paper in the row will focus on the Canadian System for selecting cases to be decided past Canada Supreme Court. A final paper will compare most important issues among the systems nether scrutiny.
In this perspective, this paper has demonstrated that the number of cases that receive a decision by the Supreme Court of the United States has decreased over the decades due to a fix of reforms over time that culminated on Rule 10 of the Supreme Courtroom.
According to this Rule, the vast majority of cases that volition exist decided by the SCOTUS must necessarily receive a grant of certiorari post-obit some broad directives. It turns out that in do a tiny small-scale number of cases ends upwards receiving a conclusion after a quite discretionary and tight pick.
At that place appears to be a relative agreement as to what factors influence the justices' votes to grant or deny certiorari to each instance.49 In practice, Dominion 10 gives the Court a wide discretion in selecting cases to a point that scholars and lawyers permanently struggle to find out what criteria are actually important for the court in guild to give a positive stance in granting certiorari, such as: the "cert pool"; the "vote of four"; divide in lower courts; the presence of the Usa government as petitioner or amicus; the participation of the Solicitor General or other amicus briefs.
In contrast, petitions seeking merely "error correction" seldom receive a cert grant, despite Rule 10 states that the Supreme Courtroom should take into consideration when evaluating certiorari petition if the lower court decision contradicts a Supreme Courtroom precedent.fifty Thus, such use of certiorari is actually rare and only granted when the Court considers the need to correct egregious errors.51
This big picture, still, oversees the fact that certiorari standards vary considerably depending on the justice. Records prove that different justices may consider relevant dissimilar aspects when voting on certiorari issues. This variation may depend on the conception the justice has on the Court and/or underlying judicial philosophy.52
Certainly, Rule x terms are broad and this gives justices a good share of discretion when evaluating certiorari matters. However, in that location has been a growing perception amid justices over time that many cases decided by the Supreme Court actually did non deserve to exist heard. They should just finish at the entreatment level.
Over fourth dimension, there has been a merits that a decision past the Supreme Court should exist given when an overarching motive is nowadays, stressing its power to rule on issues of large legal or policital significance and to supervise the federal courts. This would assert it every bit an actual Ramble Court.
vii. References
ALBERT, Richard; NIKOLAYEVA, Anna. Judicial review of administrative action in the Us. A&C - Revista de Direito Administrativo & Constitucional, Belo Horizonte, ano 17, northward. 70, p. xiii-23, out./dez. 2017.
ARAÚJO, Luiz Fernando Diniz. O ativismo judicial e constrangimentos a posteriori. Revista de Investigações Constitucionais, Curitiba, vol. 5, n. 1, p. 129-150, january./abr. 2018.
ARAÚJO, Luiz Henrique Diniz. Filtros de acesso às Cortes Constitucionais: a Questão Prioritária de Constitucionalidade e os filtros de acesso ao Conselho Constitucional Francês. Revista de Investigações Constitucionais , Curitiba, vol. six, n. 2, p. 405-422, maio/agone. 2019.
BRENNER, Saul. Granting certiorari by the u.s. supreme court: An overview of the social scientific discipline studies. Law Library Periodical, Chicago, vol. 92, due north. 2, p. 193-202, 2000.
BRENNER, Saul; WHITMEYER, Joseph Chiliad.; Harold J. Spaeth. The Outcome-Prediction Strategy in Cases Denied Certiorari by the U.S. Supreme Court. Public Option, Berlin, vol. 130, due north. 1/2, p. 225-237, jan. 2007.
CASAGRANDE, Cássio Luís; TIBÚRCIO, Dalton Robert. Marbury 5. Madison: uma decisão política de manter a Corte fora da política. A&C - Revista de Direito Administrativo & Constitucional , Belo Horizonte, ano nineteen, n. 76, p. 199-224, abr./jun. 2019.
COUSO, Javier A.; HUNEEUS, Alexandra; SIEDER, Rachel. Cultures of Legality. Judicialization and Political Activism in Latin America. Cambridge: Cambridge University Press, 2010.
EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Police force Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018.
FARBER, Daniel; SHERRY, Suzanna. Judgement calls: politics and principle in Ramble Law. New York: Oxford University Printing, 2008.
FEINMAN, Jay 1000. Law 101. 5thursday edition. New York: Oxford University Press , 2018.
GEORGE, Tracey E.; GUTHRIE, Chris. Remaking the United States Supreme Court in the Courts' of Appeals Image. Knuckles Law Journal, Durham/NC, vol. 58, n. seven, Special Symposium Issue: Measuring Judges and Justice, p. 1439-1475, april 2009.
HARTNETT, Edward A. Questioning Certiorari: Some Reflections 70-V Years after the Judges' Beak Source. Columbia Constabulary Review, New York, vol. 100, n. 7, p. 1643-1738, nov. 2000.
JORDÃO, Eduardo. Globalization and convergence in judicial review: what can we acquire from the case of Brazil? A&C - Revista de Direito Administrativo & Constitucional , Belo Horizonte, ano 17, due north. 69, p. 23-31, jul./set. 2017.
KAPISZEWSKI, Diana; SILVERSTEIN, Gordon; KAGAN, Robert A. Consequential Courts. Judicial Roles in Global Perspective. Cambridge: Cambridge University Press , 2013.
LOURENÇO, Cristina Sílvia Alves; GUEDES, Maurício Sullivan Balhe. O STF e o ensino religioso em escolas públicas: pluralismo educacional, laicidade estatal e autonomia private. Revista de Investigações Constitucionais , Curitiba, vol. 4, northward. iii. p. 145-165, gear up./dez. 2017.
MACHADO, Marta Rodriguez de Assis; Cook, Rebecca J. Constitutionalizing ballgame in Brazil. Revista de Investigações Constitucionais , Curitiba, vol. 5, n. 3, p. 185-231, fix./dez. 2018.
MORAWA, Alexander H. E. Ceriorari and the Political Estimate: Discretionary Case Selection past the United States Supreme Court and the European Court of Human Rights Compared. The University of Tasmania Law Review, Hobart, Tasmania, vol. 33, n. 2, p. 222-234, 2014.
NARECHENIA, Tejas Due north. Certiorari, Universality, and a Patent Puzzle. Michigan Law Review , Ann Arbor, vol. 116, p. 1345-1407, june 2018.
SCOTT, Kevin One thousand. Shaping the Supreme Court's Federal Certiorari Docket. Justice Arrangement Journal, Williamsburg, vol. 27:ii, p. 191-207, 2006.
TANG, Aaron. The Ethics of Opposing Certiorari Earlier the Supreme Court. Harvard Journal of Law and Public Policy, Cambridge/MA, vol. 35, n. 3, p. 933-990, summer 2012.
THOMPSON, David C.; WACHTELL, Melanie F. An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General, Geo. Mason Fifty. Rev., Arlington, vol. xvi, p. 237-302, 2009.
United states of america. Rules of the Supreme Court of the Us. Dominion ten - Considerations Governing Review on Certiorari. Available at https://law.justia.com/codes/the states/1997/title28/app/rulesofth/rule10/. Retrieved May 4, 2020
Notes
one ARAÚJO, Luiz Henrique Diniz. Filtros de acesso às Cortes Constitucionais: a Questão Prioritária de Constitucionalidade due east os filtros de acesso ao Conselho Constitucional Francês. Revista de Investigações Constitucionais, Curitiba, vol. 6, due north. 2, p. 405-422, maio/ago. 2019.
two KAPISZEWSKI, Diana; SILVERSTEIN, Gordon; KAGAN, Robert A. Consequential Courts. Judicial Roles in Global Perspective. Cambridge: Cambridge University Printing, 2013, p. 1.
three COUSO, Javier A.; HUNEEUS, Alexandra; SIEDER, Rachel. Cultures of Legality. Judicialization and Political Activism in Latin America. Cambridge: Cambridge University Printing, 2010, p. 142.
iv The model of Brazilian judicial review adopted by the Constitution-1988 combines the United states of america model (diffuse model) and the European model (abstract model). Equally a result, in Brazilian organisation, every judge is entitled to declare a statute unconstitutional in the case to be decided. These decisions are appealable to lower courts and in last resort to the Supreme Court. In improver to that, there are direct deportment (or direct constitutional lawsuits) that are decided exclusively by the Supreme Court in an abstract style (with general effects). A broad range of public and individual actors is entitled to file these lawsuits directly into the Supreme Courtroom.on the influences of Brazilian judicial review organisation, see: JORDÃO, Eduardo. Globalization and convergence in judicial review: what tin can we learn from the example of Brazil? A&C - Revista de Direito Administrativo & Constitucional, Belo Horizonte, ano 17, n. 69, p. 23-31, jul./set. 2017.
5 ARAÚJO, Luiz Fernando Diniz. O ativismo judicial e constrangimentos a posteriori. Revista de Investigações Constitucionais, Curitiba, vol. 5, n. 1, p. 129-150, jan./abr. 2018.
six MACHADO, Marta Rodriguez de Assis; Melt, Rebecca J. Constitutionalizing abortion in Brazil. Revista de Investigações Constitucionais, Curitiba, vol. five, due north. 3, p. 185-231, set up./dez. 2018.
7 LOURENÇO, Cristina Sílvia Alves; GUEDES, Maurício Sullivan Balhe. O STF eastward o ensino religioso em escolas públicas: pluralismo educacional, laicidade estatal e autonomia individual. Revista de Investigações Constitucionais, Curitiba, vol. 4, north. iii. p. 145-165, set./dez. 2017.
8 CASAGRANDE, Cássio Luís; TIBÚRCIO, Dalton Robert. Marbury v. Madison: uma decisão política de manter a Corte fora da política. A&C - Revista de Direito Administrativo & Constitucional, Belo Horizonte, ano 19, n. 76, p. 199-224, abr./jun. 2019.
9 FARBER, Daniel; SHERRY, Suzanna. Judgement calls: politics and principle in Constitutional Law. New York: Oxford University Printing, 2008, p. 12.
ten FARBER, Daniel; SHERRY, Suzanna. Judgement calls: politics and principle in Constitutional Law. New York: Oxford University Press, 2008, p. 13.
eleven ALBERT, Richard; NIKOLAYEVA, Anna. Judicial review of administrative action in the United States. A&C - Revista de Direito Administrativo & Constitucional, Belo Horizonte, ano 17, north. 70, p. xiii-23, out./dez. 2017.
12 FEINMAN, Jay M. Law 101. 5th edition. New York: Oxford University Printing, 2018, p. 24-25
13 THOMPSON, David C.; WACHTELL, Melanie F. An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General, Geo. Mason L. Rev., Arlington, vol. 16, p. 237-302, 2009, p. 242-243.
fourteen THOMPSON, David C.; WACHTELL, Melanie F. An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General, Geo. Bricklayer L. Rev., Arlington, vol. 16, p. 237-302, 2009, p 242-243.
15 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Police force Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 710.
16 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Law Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 710.
17 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Law Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 712.
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xx MORAWA, Alexander H. E. Ceriorari and the Political Guess: Discretionary Case Selection by the U.s. Supreme Courtroom and the European Court of Human Rights Compared. The University of Tasmania Constabulary Review, Hobart, Tasmania, vol. 33, northward. 2, p. 222-234, 2014, p. 228.
21 GEORGE, Tracey Due east.; GUTHRIE, Chris. Remaking the U.s.a. Supreme Courtroom in the Courts' of Appeals Image. Duke Police Journal, Durham/NC, vol. 58, northward. seven, Special Symposium Consequence: Measuring Judges and Justice, p. 1439-1475, april 2009, p. 1440-1441.
22 TANG, Aaron. The Ethics of Opposing Certiorari Before the Supreme Court. Harvard Journal of Police and Public Policy, Cambridge/MA, vol. 35, n. three, p. 933-990, summer 2012, p. 940.
23 HARTNETT, Edward A. Questioning Certiorari: Some Reflections Seventy-V Years after the Judges' Beak Source. Columbia Law Review, New York, vol. 100, north. seven, p. 1643-1738, nov. 2000, p. 1730-1731.
24 HARTNETT, Edward A. Questioning Certiorari: Some Reflections Seventy-Five Years after the Judges' Bill Source. Columbia Law Review, New York, vol. 100, n. 7, p. 1643, nov. 2000, 1738.
25 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Law Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 707.
26 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Police Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 707.
27 HARTNETT, Edward A. Questioning Certiorari: Some Reflections 70-Five Years after the Judges' Beak Source. Columbia Law Review, New York, vol. 100, north. 7, p. 1643-1738, november. 2000, p. 1713.
28 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Law Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 713-four.
29 MORAWA, Alexander H. E. Ceriorari and the Political Judge: Discretionary Example Selection by the Usa Supreme Court and the European Court of Human Rights Compared. The University of Tasmania Law Review, Hobart, Tasmania, vol. 33, north. ii, p. 222-234, 2014, P 226-227.
xxx MORAWA, Alexander H. East. Ceriorari and the Political Guess: Discretionary Case Selection by the United states of america Supreme Court and the European Court of Man Rights Compared. The University of Tasmania Law Review, Hobart, Tasmania, vol. 33, n. 2, p. 222-234, 2014, p. 227-228.
31 THOMPSON, David C.; WACHTELL, Melanie F. An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Telephone call for the Views of the Solicitor Full general, Geo. Stonemason 50. Rev., Arlington, vol. 16, p. 237-302, 2009, p 240.
32 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Law Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 708.
33 NARECHENIA, Tejas Due north. Certiorari, Universality, and a Patent Puzzle. Michigan Police Review, Ann Arbor, vol. 116, p. 1345-1407, june 2018, p. 1348.
34 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Law Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 715.
35 SCOTT, Kevin Chiliad. Shaping the Supreme Court'due south Federal Certiorari Docket. Justice Organisation Journal, Williamsburg, vol. 27:2, p. 191-207, 2006, p. 192.
36 SCOTT, Kevin G. Shaping the Supreme Courtroom's Federal Certiorari Docket. Justice System Journal, Williamsburg, vol. 27:two, p. 191-207, 2006, p. 194.
37 BRENNER, Saul; WHITMEYER, Joseph M.; Harold J. Spaeth. The Issue-Prediction Strategy in Cases Denied Certiorari by the U.South. Supreme Court. Public Choice, Berlin, vol. 130, due north. ane/two, p. 225-237, jan. 2007, p. 225-226.
38 THOMPSON, David C.; WACHTELL, Melanie F. An Empirical Assay of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor Full general, Geo. Mason 50. Rev., Arlington, vol. xvi, p. 237-302, 2009, p 240.
39 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Law Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 715.
40 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Law Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 716.
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42 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Police force Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 716-717.
43 SCOTT, Kevin One thousand. Shaping the Supreme Court'southward Federal Certiorari Docket. Justice Organization Journal, Williamsburg, vol. 27:2, p. 191-207, 2006, p. 191.
44 BRENNER, Saul. Granting certiorari past the u.s. supreme court: An overview of the social science studies. Police force Library Journal, Chicago, vol. 92, n. two, p. 193-202, 2000, p. 196-197.
45 GEORGE, Tracey E.; GUTHRIE, Chris. Remaking the United States Supreme Courtroom in the Courts' of Appeals Image. Duke Law Periodical, Durham/NC, vol. 58, n. 7, Special Symposium Issue: Measuring Judges and Justice, p. 1439-1475, apr 2009, p. 1442.
46 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Law Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 729-730.
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48 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Law Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 735-736.
49 SCOTT, Kevin M. Shaping the Supreme Court's Federal Certiorari Docket. Justice System Journal, Williamsburg, vol. 27:2, p. 191-207, 2006, p. 201.
50 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Law Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 716.
51 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Police Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 716-717.
52 EPPS, Daniel; ORTMAN, William. The Lottery Docket. Michigan Law Review. Ann Arbor/MI, vol. 116, p. 705-757, march 2018, p. 716-717
Writer notes
* Professor da Faculdade Boa Viagem/Devry (Recife-PE, Brasil). Doutor pela Universidade Federal de Pernambuco (Recife-PE, Brasil). Mestre pela Universidade Federal de Pernambuco (Recife/PE, Brasil). Visiting Researcher na University of California, Berkeley (California, EUA). Estágio Pós-Doutoral na Université Paris 1 Panthéon-Sorbonne. Procurador Federal. Coordenador Nacional de Direito Processual Civil da Escola da Advocacia-Geral da União. Professor de Direito Constitucional e Direito Processual Civil da Escola da AGU. Coordenador da área Fazenda Pública da Escola Superior da Advocacia Ruy Antunes - ESA/PE. Membro do Grupo REC de Estudos Constitucionais. Membro da Associação Norte e Nordeste de Professores de Processo. E-mail: luizdinizaraujo@hotmail.com.
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