certiorari

Certiorari is the passive infinitive of the Latin verb certioro, certioras, certiori — itself derived from certus (certain, decided, fixed) and the causative suffix -orare, giving the meaning 'to be made certain' or 'to be informed.' The adjective certus belongs to a root that also gives English 'certain,' 'certificate,' 'discern,' and 'concern'; it connects ultimately to the Proto-Indo-European root *krey- (to sieve, to separate), from which also come 'critic,' 'criterion,' and 'crime.' The original Latin phrase in the writ was certiorari volumus (we wish to be more fully informed), or in passive constructions certiorari debet (the record ought to be certified up). The writ was thus nominally a request for information — an order by a superior court demanding that an inferior court certify its record and send it up for examination. The language of inquiry concealed a command.

The writ of certiorari developed in the English common law courts, used initially by the Court of King's Bench to supervise inferior courts and administrative tribunals. When a party believed that an inferior court had exceeded its jurisdiction or acted against the rules of natural justice, a certiorari writ would issue, summoning the record — the physical transcript of proceedings — to the superior court for review. The remedy was not to retry the case but to quash the inferior court's proceedings as void. Certiorari thus operated as a supervisory remedy, and for centuries it was understood primarily as a tool of jurisdictional control: if the court below had no power to do what it did, certiorari would unmake it.

The word acquired its peculiar contemporary significance in the United States through the Judiciary Act of 1925, which gave the Supreme Court discretionary control over most of its appellate docket. Before 1925, many appeals to the Court were of right — the Court was obliged to hear them. After 1925, Congress granted the Court authority to grant or deny certiorari by its own judgment: four of the nine justices must vote to grant a petition before the Court will hear a case. This is the 'Rule of Four.' Each year the Court receives approximately 7,000 to 8,000 petitions for certiorari and grants roughly 60 to 80 — less than one percent. The phrase 'cert denied' (the short form universally used among American lawyers) is the most common outcome of the certiorari process, and it carries more practical finality than most litigants ever anticipated when they filed their cases below.

The Supreme Court's certiorari jurisdiction is now so central to how American law works that the word has escaped legal jargon and entered the general vocabulary of politics and journalism. When the Court declines to hear a case challenging a controversial law, the news reports that 'the Court denied certiorari' — and the denial is widely (and often incorrectly) interpreted as an endorsement of the outcome below, when in fact the Court may deny certiorari for any number of reasons unrelated to the merits. The Latin passive infinitive — bureaucratic, impersonal, technically precise — now carries the enormous weight of a gatekeeping power that shapes which constitutional questions get answered and which remain unresolved for years or decades.