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The Role of the State Attorney General - Arizona State Law School Version
Resource 11 . 1

Results of Cert Petitions on Filed by States, NAAG (2018)

James E. Tierney,
Terry Goddard

A key element of our federal system of government is the ability state government to broadly advocate within the judiciary on a broad swath of consitutional issues.  .  While state governments appear in both federal and state court on a daily basis, it is the appearance of state government before the United States Supreme Court that often makes the greatest impact. 

These statistics make clear fact that states are more likely to appear more often than any entity other that the federal government itself.

 

 

 

RESULTS OF CERT PETITIONS FILED BY STATES

by Dan Schweitzer

 

2001-2016 TERMS

 

Granted:

228

[77 were supported by state amicus briefs]

Held or GVRed:

105

 

Denied:

722

[93 were supported by state amicus briefs]

 

Total:                           1050

Success Rate:              228/950 = 24%    [this figure doesn’t count held or GVR’ed cases]

 

Success Rate of petitions supported by state amicus briefs: 77/171 = 45% Success Rate of petitions not supported by state amicus briefs: 151/779 = 19%

 

2016 Term (with 1 petition pending)

 

Granted:            8        (3 supported by state amicus briefs) Held or GVR:                0

Denied:           40        (5 supported by state amicus briefs) Pending:                          1        (1 supported by state amicus briefs)

 

Success Rate: 8/48 = 17%

 

Success Rate of petitions supported by state amicus briefs: 3/9 = 33% Success Rate of petitions not supported by state amicus briefs: 5/39 = 13%

 

 

2015 Term

 

Granted:            9        (4 supported by state amicus briefs) Held or GVR:                5        (2 supported by state amicus brief) Denied:                        43        (5 supported by state amicus briefs) Dismissed:         2

 

Success Rate: 9/52 = 17%

 

Success Rate of petitions supported by state amicus briefs: 4/9 = 44% Success Rate of petitions not supported by state amicus briefs: 5/43 = 12%

 

2014 Term

 

Granted:          16        (5 supported by state amicus briefs) Held or GVR:                8        (1 supported by state amicus brief) Denied:                        34        (7 supported by state amicus briefs) Dismissed:         1

 

Success Rate: 16/50 = 32%

 

Success Rate of petitions supported by state amicus briefs: 5/12 = 42% Success Rate of petitions not supported by state amicus briefs: 11/38 = 29%

 

2013 Term

 

Granted:            6        (1 supported by state amicus briefs) Held or GVR:                2

Denied:           42        (5 supported by state amicus briefs)

Total:               50

Success Rate: 6/48 = 12.5%

 

Success Rate of petitions supported by state amicus briefs: 1/6 = 17% Success Rate of petitions not supported by state amicus briefs: 5/42 = 12%

 

2012 Term

 

Granted:          18        (8 supported by state amicus briefs) Held or GVR:                9

Denied:           38        (8 supported by state amicus briefs)

 

Total:               65

Success Rate: 18/56 = 32%

 

Success Rate of petitions supported by state amicus briefs: 8/16 = 50% Success Rate of petitions not supported by state amicus briefs: 10/40 = 25%

 

2011 Term

 

Granted:

11

[5 supported by state amicus briefs]

Held or GVRed:

4

 

Denied:

28

[5 supported by state amicus briefs]

 

Total:                           43

Success Rate:              11/39 = 28%

 

Success Rate of petitions supported by state amicus briefs: 5/10 = 50% Success Rate of petitions not supported by state amicus briefs: 6/29 = 21%

 

2010 Term

 

Granted:

13

[4 supported by state amicus briefs]

Held or GVRed:

12

 

Denied:

28

[1 supported by state amicus briefs]

 

Total:                           53

Success Rate:              13/41 = 32%

 

2009 Term

 

Granted:

15

[5 supported by state amicus briefs]

Held or GVRed:

2

 

Denied:

37

[1 supported by state amicus briefs]

 

Total:                           54

Success Rate:              15/52 = 29%

 

Success Rate of petitions supported by state amicus briefs: 5/6 = 83% Success Rate of petitions not supported by state amicus briefs: 10/46 = 22%

 

2008 Term

 

Granted:

13

[3 supported by state amicus briefs]

Held or GVR:

3

 

Denied:

35

[6 supported by state amicus briefs]

 

Total:                           51

Success Rate:              13/48 = 27 %

 

Success Rate of petitions supported by state amicus briefs: 3/9 = 33 % Success Rate of petitions not supported by state amicus briefs: 10/39 = 26 %

 

2007 Term

 

Granted:

18

[7 supported by state amicus briefs]

Held or GVR:

4

 

Denied:

27

[4 supported by state amicus briefs]

 

Total:                           49

Success Rate:              18/45 = 40 %

 

Success Rate of petitions supported by state amicus briefs: 7/11 = 64 % Success Rate of petitions not supported by state amicus briefs: 11/34 = 32 %

 

2006 Term

 

Granted:

9

[3 supported by amicus briefs]

 

Held or GVRed:

4

 

Denied:

42

[7 supported by amicus briefs]

[1 CVSG]

 

Total:

 

55

Success Rate:

9/51 = 18%

 

2005 Term

 

Granted:

10

[3 supported by amicus briefs]

 

Held or GVRed:

14

 

 

Denied:

57

[6 supported by amicus briefs]

[1 CVSG]

 

Total:

 

81

Success Rate:

10/67 = 15%

 

Success Rate of petitions supported by state amicus briefs: 3/9 = 33 % Success Rate of petitions not supported by state amicus briefs: 7/58 = 12 %

 

2004 Term

 

Granted:

23

[5 supported by amicus briefs]

Held or GVRed:

6

 

Denied:

53

[8 supported by amicus briefs]

 

Total:                           82

Success Rate:              23/76 = 30%

 

Success Rate of petitions supported by state amicus briefs: 5/13 = 38% Success Rate of petitions not supported by state amicus briefs:                               18/63= 29%

 

2003 TERM

 

Granted:

14

[4 supported by state amicus briefs]

Held or GVRed:

13

 

Denied:

57

[5 supported by state amicus briefs]

 

Total:                           85

Success Rate:              14/71 = 20%

 

Success Rate of petitions supported by state amicus briefs: 4/9 = 44% Success Rate of petitions not supported by state amicus briefs:                               10/62= 16%

 

2002 TERM

 

Granted:

24

[8 supported by state amicus briefs]

Held or GVRed:

10

 

Denied:

60

[4 supported by state amicus briefs] [1 CVSG]

 

Total:

 

94

Success Rate:

24/84 = 29%

 

2001 TERM

 

Granted:

13

[6 supported by state amicus briefs]

GVRed:

4

 

Denied:

58

[11 supported by state amicus briefs]

 

Total:                           75

Success Rate:              13/71 = 18%

 

Success Rate of petitions supported by state amicus briefs: 6/17 = 35% Success Rate of petitions not supported by state amicus briefs: 7/54 = 13%

 

 

 

 

Explanation of Methodology [using 2007 Term as an example]

 

1.     This summary of cert petitions filed by States reflects petitions filed between July 1, 2007 and June 30, 2008 — i.e., those petitions with case numbers beginning 07. Technically, some of these petitions were filed during the 2006 Term and some of them were not acted on until the 2008 Term began. But focusing on all petitions with case numbers beginning 07 allowed me to summarize what essentially is a Term’s worth of petitions.

 

2.     The information in this summary is derived from my review of the summaries of all paid cert petitions that appeared in U.S. Law Week’s Supreme Court Today. A petition was deemed filed by a State if the U.S. Law Week summary indicated that an Attorney General office was counsel on the case (whether or not counsel of record).

 

3.     A petition was deemed “granted” if the Court granted the petition and either conducted plenary review (i.e., allowed briefing and oral argument) or summarily reversed the judgment below through a written per curiam opinion.

 

4.     A petition was deemed “GVRed” if the Court granted the petition, vacated the judgment below, and remanded for further consideration in light of a recent decision or legislative enactment.

 

5.     A petition was deemed “held” if it was clear to me that the petition presented an issue that was already before the Court on a granted petition. In that event, the Court held the petition and then, depending on the outcome of the granted case, either GVRed or denied the petition.

 

 

6.     The Court occasionally invites the Solicitor General of the United States to express his views with respect to a pending petition. (This is known as a “CVSG”.) In my view, even if the Solicitor General ultimately recommends that cert be denied, and cert is then denied, the petition was still more successful than not as a piece of advocacy. To avoid confusion, however, and to be conservative in determining the States’ “success rate,” I placed such petitions in the “denied”

Results of Cert Petitions on Filed by States, NAAG (2018) (Links to an external site.)

 

Results of Cert Petitions on Filed by States, NAAG (2018)

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