Certiorari before judgment is rarely granted. Supreme Court Rule 11 states that this procedure will be followed "only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."[1]
In some situations, the court has also granted certiorari before judgment so that it could review a case at the same time as a similar case that had already reached the court otherwise.[2]
The power to grant certiorari before judgment is provided by statute, which authorizes the Supreme Court to review "cases in the courts of appeals" by granting certiorari "before or after rendition of judgment or decree".[3] A party to the case may petition to the Supreme Court "at any time before judgment",[4] after a court of appeals has docketed the case. Only cases in a United States court of appeals are eligible, not any other court.[5] Any party can file the petition, regardless of which party originally prevailed in the district court.[6][7]
The Supreme Court granted certiorari before judgment only three times between 1988 and 2004, and zero times from then until February 2019. Since 2019, the court has granted certiorari before judgment in more cases.[10]
Certiorari before judgment granted since 1988[11][a]
^Department of Homeland Security v. Regents of the University of California (2020) (cert. granted June 28, 2019) is not included in this list because although the petition was for certiorari before judgment, the court of appeals decided the case before the Supreme Court granted the petition, so that certiorari was after judgment. United States v. Windsor (2013) (cert. granted December 7, 2012) is omitted for the same reason.
References
S. Shapiro et al., Supreme Court Practice (BNA Books, 10th ed. 2013), section 2.4
Lindgren, James; Marshall, William P. (1986). "The Supreme Court's Extraordinary Power to Grant Certiorari before Judgment in the Court of Appeals". The Supreme Court Review: 259–316. JSTOR3109524.
