Can I appeal from a federal circuit court of appeals to the United States Supreme Court?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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Any party can attempt to appeal a decision from a circuit court of appeals to the U.S. Supreme Court, but this doesn’t mean that the appeal will be heard. Each year, the Supreme Court typically grants certiorari (i.e. accepts an appeal) for about 100 cases out of the approximately 7,000-8,000 cases that are appealed. Thus, for 99% of all federal cases, the decision of the circuit court of appeals is the last word. A court of appeals decision can be appealed, but the issues at stake must be so significant, or the court of appeal’s error in law so egregious, that the Supreme Court is persuaded to hear the case. The Supreme Court’s review of circuit court of appeals cases is thus best described as discretionary, rather than mandatory.

While some might find this difficulty in taking an appeal to the Supreme Court to be at odds with the principles behind the American system of justice, one has to keep in mind the issues of judicial economy and deference to the courts of appeals, which go hand in hand. First of all, it’s simply not possible for one court to hear thousands of appeals in one year. With the Supreme Court being the final say on the law of the land, various issues of nationwide social or constitutional importance arise which require immediate resolution by the court (think back to Bush v. Gore, settling the 2000 election). As long as such cases exist from year to year, an ordinary appeal made because the losing party did not agree with the court of appeal’s decision will not get the time of day in front of the Supreme Court. The Supreme Court also chooses to defer to the circuit courts of appeals on most decisions, both because it agrees with the decision and sees no need for further review, and because the Supreme Court needs those circuit courts to make good decisions in order to help manage the immense backlog of cases in the court system.

Despite this general framework for review of circuit court of appeals decisions, there are some quirks. In some rare instances, the Supreme Court may hear arguments over an order made by a court of appeals, rather than a final judgment. This is known as an interlocutory appeal and was illustrated most famously in the several lawsuits over President Nixon’s executive privilege during the Watergate scandal. In addition, according to the Constitution, the Supreme Court has original jurisdiction over two specific types of cases: disputes involving ambassadors and lawsuits where a state is a party. This means that the Supreme Court may take up these cases directly without them first going through the district court and court of appeals levels. Again, though, this jurisdiction is discretionary and almost never occurs. When the Supreme Court does take one of these cases based on original jurisdiction, it is typically one in which two or more states are involved.

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