02 September 2020

SCOTUS Review Of State Court Cases

Cases in which a federal question is present in a state court can, after appeals are exhausted in the state courts, be reviewed via a writ of certiorari by the U.S. Supreme Court. But this review is very rare. State supreme courts, collectively, decide something on the order of 10,000 cases a year.

The precedents created by the cases reviewed have a massive impact on how state courts apply the law. But given that the vast majority of criminal prosecutions and civil cases in the United States take place in state courts, this review is very light. 

Out of all the criminal cases decided in any given year, just two to ten of them (on average about five) will be considered by the U.S. Supreme Court on the merits. A disproportionate share of those cases involve the death penalty.

The number of civil cases from state courts considered by the U.S. Supreme Court on the merits each year is similar.

Appeals to the U.S. Supreme Court from state supreme court cases accounted for 11 cases in 2019 (17% of the U.S. Supreme Court's docket): "The cases from lower state courts were primarily criminal in nature with seven but included four civil cases as well."
Since the beginning of the Roberts Court, the split of cases from lower state and federal courts has, for the most part, hovered around this 10-20% state court case margin.

In OT 2019 almost 73% of the Court’s cases reviewing state court decisions were criminal rather than civil. Over the last five terms though, there has been considerable fluctuation in this balance between criminal and civil cases coming from lower state courts.

During the Court’s 2012 Term (the 2013 Term will be completed later next month) the Court disposed of a whopping 7602 petitions and granted only 92 petitions for oral argument – a rate of 1.21%. That figure does not count GVRs – the grant of a petition for certiorari, vacation of the lower court’s judgment, and remand of the case. 
That doesn’t seem much better than a snowball’s chance, right? If we separate petitions into two commonly analyzed categories – paid petitions and petitions filed In Forma Pauperis (IFP) – the grant rate changes considerably.
During the 2012 Term, 82 of the 1503 paid petitions filed were granted – a rate of 5.46%. IFP petitions, which made up the bulk of the Court’s docket (80.2%), were granted at a rate of .01% (6099 IFP petitions were disposed of vs. the 10 that were granted).
The number of cases decided by the U.S. Supreme Court on the merits each year is at a historic low for the post-U.S. Civil War era:


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