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Judicial Writ



Parties who are not satisfied with the decision of a lower court must petition the U.S. Supreme Court to hear their case. The primary means to petition the court for review is to ask it to grant a writ of certiorari. This is a request that the Supreme Court order a lower court to send up the record of the case for review. The Court usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value. In fact, the Court accepts 100-150 of the more than 7,000 cases that it is asked to review each year. Typically, the Court hears cases that have been decided in either an appropriate U.S. Court of Appeals or the highest Court in a given state (if the state court decided a Constitutional issue).




judicial writ



While it is the prerogative of every Justice to read each petition for certiorari himself/herself, many participate in what is informally known as the "cert pool." As petitions for certiorari come in on a weekly basis, they are divided among the participating Justices. The participating Justices divide their petitions among their law clerks. The law clerks, in turn, read the petitions assigned to them, write a brief memorandum about the case, and make a recommendation as to whether the case should be accepted or not. The Justice provides these memoranda and recommendations to the other Justices at a Justices' Conference.


If the Justices decide to accept a case (grant a petition for certiorari), the case is placed on the docket. According to the Supreme Court's rules, the petitioner has a certain amount of time to write a brief, not to exceed 50 pages, putting forth his/her legal case concerning the issue on which the Court granted review. After the petitioner's brief has been filed, the other party, known as the respondent, is given a certain amount of time to file a respondent's brief. This brief is also not to exceed 50 pages.


When each Justice is finished speaking, the Chief Justice casts the first vote, and then each Justice in descending order of seniority does likewise until the most junior justice casts the last vote. After the votes have been tallied, the Chief Justice, or the most senior Justice in the majority if the Chief Justice is in the dissent, assigns a Justice in the majority to write the opinion of the Court. The most senior justice in the dissent can assign a dissenting Justice to write the dissenting opinion.


If a Justice agrees with the outcome of the case, but not the majority's rationale for it, that Justice may write a concurring opinion. Any Justice may write a separate dissenting opinion. When there is a tie vote, the decision of the lower Court stands. This can happen if, for some reason, any of the nine Justices is not participating in a case (e.g., a seat is vacant or a Justice has had to recuse).


A majority of Justices must agree to all of the contents of the Court's opinion before it is publicly delivered. Justices do this by "signing onto" the opinion. The Justice in charge of writing the opinion must be careful to take into consideration the comments and concerns of the others who voted in the majority. If this does not happen, there may not be enough Justices to maintain the majority. On rare occasions in close cases, a dissenting opinion later becomes the majority opinion because one or more Justices switch their votes after reading the drafts of the majority and dissenting opinions. No opinion is considered the official opinion of the Court until it is delivered in open Court (or at least made available to the public).


(a) Authority of the Supreme Court. The Supreme Court, or any two (2) justices thereof, may in its discretion, on motion of any party to the case or on its own motion, issue a writ of certiorari to review a final decision of the Court of Appeals.


(b) Considerations Governing Review. A writ of certiorari is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons. The following, while neither controlling nor fully measuring the Supreme Court's discretion or power to grant review in general, indicate the character of reasons which will be considered:


(c) Time for Petitioning and Filing Fee. A decision of the Court of Appeals is not final for the purpose of review by the Supreme Court until the petition for rehearing or reinstatement has been acted on by the Court of Appeals. A petition for writ of certiorari shall be served on opposing counsel and filed with proof of service with the Clerk of the Court of Appeals and the Clerk of the Supreme Court within thirty (30) days after the petition for rehearing or reinstatement is finally decided by the Court of Appeals. An original and six (6) copies of the petition shall be filed with the Supreme Court. The copies filed with the Supreme Court shall be accompanied by the filing fee set by order of the Supreme Court.1 No filing fee shall be required in criminal cases or petitions filed by the State of South Carolina or its agencies or departments.


(2) The questions presented for review, expressed in the terms and circumstances of the case but without unnecessary detail. Only those questions raised in the Court of Appeals and in the petition for rehearing shall be included in the petition for writ of certiorari as a question presented to the Supreme Court. A question presented will be deemed to include every subsidiary question fairly comprised therein.


(1) A copy of the Record on Appeal and brief(s), or in post-conviction relief matters, a copy of the Appendix, petition for writ of certiorari, return, reply and any briefs filed under Rule 243, SCACR.


If the Appendix contains any of the documents specified in (2) above, a copy of the Appendix must be served on the opposing counsel and proof of service of the Appendix must be filed when the petition for writ of certiorari is filed.


(h) Consolidation. Where several cases that involve identical or closely related questions are sought to be reviewed on certiorari, the filing of a single petition for writ of certiorari shall suffice to cover all the cases.


Latin for "that you have the body." In the US system, federal courts can use the writ of habeas corpus to determine if a state's detention of a prisoner is valid. A writ of habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person's imprisonment or detention is lawful. A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody. It can also be used to examine any extradition processes used, the amount of bail, and the jurisdiction of the court. See, e.g. Knowles v. Mirzayance 556 U.S. 111 (2009), Felker v. Turpin 518 US 1051 (1996) and McCleskey v. Zant 499 US 467 (1991).


Deeply rooted in the Anglo-American jurisprudence, the law of habeas corpus was adopted in the U.S. as well. James Madison, in 1789, argued for the adoption of the Bill of Rights, including Habeas Corpus. The fourth Chief Justice of the U.S. Supreme Court, Chief Justice Marshall, emphasized the importance of habeas corpus, writing in his decision in 1830, that the "great object" of the writ of habeas corpus "is the liberation of those who may be imprisoned without sufficient cause." The U.S. Supreme Court has recognized that the "writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" and must be "administered with the initiative and flexibility essential to ensure that miscarriages of justice within its reach are surfaced and corrected.


In the first Judiciary Act of 1789, Congress explicitly authorized the federal courts to grant habeas relief to federal prisoners. Congress expanded the writ following the Civil War, allowing for habeas relief to state prisoners if they were held in custody in violation of federal law. Federal courts granted habeas relief to state prisoners by finding that the state court lacked the proper jurisdiction. Post-World War II reforms further expanded the writ: through the incorporation process by which the Bill of Rights was applied to the states, habeas corpus became a tool by which criminal defendants sought to uphold their civil rights against illegal state action. The Warren Court further paved the way for broader habeas corpus rights.


Today, habeas corpus is mainly used as a post-conviction remedy for state or federal prisoners who challenge the legality of the application of federal laws that were used in the judicial proceedings that resulted in their detention. Other uses of habeas corpus include immigration or deportation cases and matters concerning military detentions, court proceedings before military commissions, and convictions in military court. Finally, habeas corpus is used to determine preliminary matters in criminal cases, such as: (i) an adequate basis for detention; (ii) removal to another federal district court; (iii) the denial of bail or parole; (iv) a claim of double jeopardy; (v) the failure to provide for a speedy trial or hearing; or (vi) the legality of extradition to a foreign country.


The writ of habeas corpus primarily acts as a writ of inquiry, issued to test the reasons or grounds for restraint and detention. The writ thus stands as a safeguard against imprisonment of those held in violation of the law, by ordering the responsible enforcement authorities to provide valid reasons for the detention. Thus, the writ is designed to obtain immediate relief from unlawful impeachment, by ordering immediate release unless with sufficient legal reasons and grounds.


The habeas corpus is not a narrow, static, and formalistic remedy, and must retain the flexibility to cut through various barriers of forms and procedural complexities by which a person may be imprisoned or detained. Accordingly, the writ of habeas corpus is a flexible writ that can be administered with initiative and flexibility to obtain release from illegal custody. Although the writ of habeas corpus is thus a flexible writ for obtaining a release from custody when one is illegally detained, there are some limitations to the rule of habeas corpus. 041b061a72


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