Petitioning the U.S. Supreme Court: The Writ of Certiorari

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

After a federal court of appeals decides a case, one further step remains: asking the United States Supreme Court to review it. That request is made through a petition for a writ of certiorari. It is the final stage of the appellate process — and it is also the most selective. The Supreme Court chooses its cases, and it grants only a small fraction of the petitions it receives.

The certiorari stage is one our firm works in directly. Our principal attorney, Elizabeth Franklin-Best, is admitted to the bar of the Supreme Court of the United States and to all twelve federal circuit courts of appeals, and her practice spans more than 330 federal proceedings overall — over 100 of them appeals across every regional circuit, and roughly nineteen matters at the United States Supreme Court at the certiorari stage. That appellate record includes published courts-of-appeals decisions such as United States v. Slager, 912 F.3d 224 (4th Cir. 2019), United States v. Frias, 102 F.4th 98 (2d Cir. 2024), and United States v. Joseph, 108 F.4th 1273 (10th Cir. 2024) — the kind of courts-of-appeals work from which cert petitions are built. Best Lawyers in America 2026 recognizes her appellate work with its “Best Lawyer” designation in Appellate Practice, and Chambers USA 2026 ranks the firm in Litigation: White-Collar Crime & Government Investigations. Her book, Reversing Your Criminal Conviction, treats certiorari as what it is — one stage in a larger post-conviction strategy. With Managing Director Christopher Zoukis, we evaluate cases candidly for the issues that can warrant the Court’s attention; we cite these decisions as evidence of experience, never as a promise about any result. The certiorari process is governed by the Supreme Court’s rules, most importantly Rule 10.

This guide explains the writ of certiorari — what it is, what the Supreme Court looks for, the strict deadline, how the process works, the realistic odds, and how to think about whether a certiorari petition makes sense. If you are considering asking the Supreme Court to review a federal criminal case, this guide explains the path.

Quick Answer

Question	Answer
What is a writ of certiorari?	The order by which the U.S. Supreme Court agrees to review a case. A party asks for it by filing a petition for a writ of certiorari.
Is Supreme Court review a right?	No. Certiorari is discretionary — the Court chooses which cases to hear and grants only a small fraction of petitions.
What does the Court look for?	Under Supreme Court Rule 10, most importantly a circuit split, a conflict with Supreme Court precedent, or an important question of federal law.
What is the deadline?	A cert petition must generally be filed within 90 days of the court of appeals judgment, or the denial of a timely rehearing petition.
How many votes does it take to grant?	Four — the “rule of four.” If four Justices vote to grant, the Court hears the case.
How many petitions succeed?	In the October 2024 Term, 3,856 cases were filed and only 73 were argued — a grant rate below two percent.

Key Takeaways

• A petition for a writ of certiorari asks the U.S. Supreme Court to review a case after the court of appeals decides it.
• Supreme Court review is discretionary — it is not a right, and the Court grants only a small fraction of petitions.
• Under Rule 10, the Court looks for circuit splits, conflicts with its precedent, and important questions of federal law.
• The Court is not a court of error correction — being right is not enough; the issue must matter nationally.
• A cert petition must generally be filed within 90 days of the court of appeals judgment or the denial of rehearing.
• It takes the votes of four Justices — the “rule of four” — to grant certiorari.
• A denial of certiorari is not a ruling on the merits; it simply leaves the lower court decision in place.
• GVR orders — grant, vacate, and remand in light of an intervening decision — are a realistic path to relief for timely filed petitions, and relisted petitions signal serious attention.
• The decision to petition should be made with candid counsel and account for the broader post-conviction strategy.

What Is a Writ of Certiorari?

A writ of certiorari is the order by which the United States Supreme Court agrees to review a case. A party who lost in a federal court of appeals — or in a state’s highest court on a federal question — asks the Supreme Court to take the case by filing a petition for a writ of certiorari, commonly called a “cert petition.”

The defining feature of certiorari is that it is discretionary. Unlike the direct appeal to a court of appeals, which a defendant takes as of right, Supreme Court review is not a right. The Court chooses which cases it will hear. The cert petition is a request, and the Court grants only the petitions it decides are worth its attention.

This shapes everything about a cert petition. A petition is not, primarily, an argument that the lower court was wrong. It is an argument that the case is important enough — and presents an issue significant enough — that the Supreme Court should use one of its limited slots to decide it. Understanding that difference is the key to understanding certiorari.

What the Supreme Court Looks For

The Supreme Court’s own rules describe the considerations that guide whether it will grant certiorari. Supreme Court Rule 10 explains that review is not a matter of right but of judicial discretion, and that a petition is granted only for compelling reasons. The rule then identifies the kinds of reasons the Court finds compelling.

• A circuit split. The single most important factor. When the federal courts of appeals have reached conflicting conclusions on the same important question of federal law, the Supreme Court often steps in to resolve the conflict.
• Conflict with Supreme Court precedent. A lower court decision that conflicts with the Supreme Court’s own decisions can warrant review.
• An important question of federal law. The Court may take a case that presents an important federal question that it has not yet settled, or that calls for the settlement of an important issue.

The common thread is significance beyond the individual case. The Supreme Court is not a court of error correction — it does not take cases simply because the lower court may have decided them wrongly. Rule 10 says as much directly. A cert petition that simply argues the court of appeals got it wrong, without showing why the issue matters nationally, is unlikely to succeed. The strongest petitions identify a genuine, well-developed conflict or a question of real national importance.

Applied Insight: The hardest thing for a petitioner to accept is that being right is not enough. The Supreme Court denies many petitions in cases where the lower court may well have erred — because the Court’s role is to resolve issues of national importance, not to correct individual mistakes. An effective cert petition is written for that audience: it leads with why the issue matters to the law, not only with why this defendant should win.

The Certiorari Deadline

Like every stage of the appellate process, certiorari has a strict deadline. Under Supreme Court Rule 13.1, a petition for a writ of certiorari must be filed within 90 days after entry of the judgment for which review is sought. The clock runs from the entry of the judgment itself — not from the later issuance of the court of appeals’ mandate.

A timely petition for rehearing in the court of appeals resets the start date: under Rule 13.3, the 90 days then run from the denial of rehearing or, if rehearing is granted, from the new judgment. Extensions exist but are disfavored. Rule 13.5 lets a single Justice extend the filing time by up to 60 days for good cause, on an application filed at least 10 days before the petition is due — and the rule itself says such applications are “not favored.” No one should plan around an extension; the safe course is to treat the 90 days as the deadline and act well within it.

Because the window is defined and the work of preparing a strong petition takes time, a defendant considering certiorari should engage counsel promptly after the court of appeals decides the case — not in the final days before the deadline.

The Certiorari Process

The certiorari process follows a defined sequence, and it is largely a process of written submissions.

The petitioner files the petition for a writ of certiorari, which presents the question or questions for review and explains why the case warrants the Court’s attention. The opposing party — in a federal criminal case, the government — may file a brief in opposition, and the petitioner may file a reply. In some cases, others may file amicus curiae briefs urging the Court to grant or deny review. The petition is then distributed to the Justices and considered at one of the Court’s conferences.

At conference, the Justices vote. By long-standing practice, it takes the votes of four Justices to grant certiorari — the “rule of four.” If certiorari is granted, the case proceeds to full merits briefing and oral argument before the Court. If it is denied — as most petitions are — the court of appeals decision stands. A denial of certiorari is not a ruling on the merits; it simply means the Court declined to hear the case.

GVR Orders, Relists, and Other Outcomes

Grant and deny are not the only things the Supreme Court does with a cert petition, and two of the intermediate outcomes matter enormously in criminal cases.

The first is the GVR — an order that grants the petition, vacates the lower court’s judgment, and remands for reconsideration, all in one stroke and without briefing or argument. The Court typically issues GVRs “in light of” an intervening development: most often a new Supreme Court decision that bears on the case, and sometimes the Solicitor General’s confession of error. For federal defendants, this is the quiet engine of certiorari practice. When the Court decides a case that changes the legal landscape — as it has repeatedly in recent terms on fraud, obstruction, and firearms statutes — defendants with petitions already on file routinely receive GVRs and a fresh chance in the court of appeals. To be clear about its limits: a GVR is not a ruling on the merits, and the court of appeals remains free on remand to reach the same result — but the opportunity to rebrief the case under better law is real. A timely filed petition is the ticket; a missed deadline forfeits it.

The second is the relist. When the Justices neither grant nor deny a petition at conference but instead set it for consideration again at a later conference, the petition has been “relisted.” Court watchers track relists closely because they signal that at least one Justice is engaging seriously with the case — relisting often precedes a grant, a summary reversal, or a written opinion concurring in or dissenting from denial. A relist is no guarantee of anything, but it means the petition survived the first cut that disposes of the overwhelming majority of cases.

The Realistic Odds

Any honest discussion of certiorari has to address the odds, and the numbers are public. According to the Chief Justice’s 2025 Year-End Report, 3,856 cases were filed in the Supreme Court in the October 2024 Term — 1,329 on the paid docket and 2,527 in forma pauperis — while the Court heard argument in just 73 cases and resolved 64 of them in 56 signed opinions. That is a grant rate below two percent overall, and lower still for criminal petitions without a developed circuit split. For a typical federal criminal petitioner, the realistic probability that the Court will grant plenary review is low.

This is not a reason for despair, but it is a reason for clear eyes. A cert petition should be pursued because the case genuinely presents the kind of issue the Court takes — a real circuit split, a conflict with the Court’s precedent, or a question of true national importance — not on the hope that the Court will simply notice an injustice. A candid evaluation of whether a case has that kind of issue is the most valuable thing counsel can provide at this stage.

It is also worth remembering that filing a cert petition can serve a purpose even when a grant is unlikely. A pending petition positions a case for a GVR if the Court decides a related question in someone else’s case. And for a defendant who intends to pursue post-conviction relief, the certiorari stage fixes when the conviction becomes final: under Clay v. United States, 537 U.S. 522 (2003), finality for the one-year 2255 clock waits until the Court denies certiorari or the 90-day window passes unused. The decision to petition should account for that broader strategy.

Deciding Whether to Petition

Whether to file a cert petition is a strategic decision, and it should be made with honest counsel. A few questions guide it.

• Does the case present a cert-worthy issue? Is there a genuine circuit split, a conflict with Supreme Court precedent, or a question of real national importance?
• Is the issue well-positioned? Was the issue properly preserved and squarely decided below, so the case is a clean vehicle for the question?
• What is the realistic benefit? What would a grant — and a favorable decision — actually achieve for the defendant?
• How does it fit the broader strategy? How does the cert petition relate to the timeline for any post-conviction proceedings?

For some cases, a cert petition is well worth pursuing — the issue is significant, the vehicle is clean, and the stakes justify the effort. For others, the more productive focus is on post-conviction relief. An experienced appellate lawyer can give a candid assessment of which path fits the case.

How Our Firm Approaches Certiorari

At Elizabeth Franklin-Best, P.C., we approach certiorari with both ambition and honesty. As a member of the Supreme Court bar who has appeared at the certiorari stage on roughly nineteen occasions, our principal attorney reads the Court’s docket the way the Justices’ chambers do — looking for conflicts, clean vehicles, and questions presented that travel beyond one defendant’s case. That is the discipline we bring when we assess a petition: a candid judgment about whether a case belongs among the small fraction the Court agrees to hear.

Our certiorari work includes a clear-eyed assessment of whether a case presents a genuine circuit split or a question of national importance, careful attention to the 90-day deadline, identification of the cleanest framing of the question presented, preparation of a focused and persuasive cert petition, and honest counsel about the realistic odds and how a petition fits the broader post-conviction strategy — including monitoring the Court’s docket for pending cases that could produce a GVR. Because certiorari practice is inherently national, geography never limits the cases we take.

Certiorari is the last step of a longer road. For the earlier stages, see our guides to federal direct appeals and the federal appellate process, or begin with the federal criminal appeals overview.

Talk With a Federal Appeals Lawyer

A petition for a writ of certiorari is the final step of the appellate process and the most selective. Whether it makes sense in a given case depends on whether the case presents a genuinely cert-worthy issue — and that is a question for honest, experienced evaluation.

In a paid, one-hour initial consultation, we will look hard at the court of appeals’ decision with you: whether a genuine circuit split exists, whether the issue was preserved cleanly enough to make the case a good vehicle, what a GVR scenario might look like, and how the 90-day window interacts with your post-conviction timeline. If the honest answer is that certiorari is not the best use of your resources, we will say so — and tell you what is.