Power given to the Supreme Court by Article III, section 2, of the U.S. Constitution, as further defined by federal statute, to review and revise the final decisions of the highest state courts and to review cases from the U.S. court of appeals.

The Supreme Court’s power, including its appellate jurisdiction, originates in the U.S. Constitution. As one of the three coordinate branches of the federal government, it is the judicial arbiter of the Constitution, exercising appellate authority for this purpose over both state and federal courts. Without the Court’s appellate jurisdiction, the Framer’s concern for the rule of law and the supremacy of the Constitution and the statutes passed pursuant to it would have no practical effect.

All federal courts, including the Supreme Court, are courts of limited jurisdiction. As such, the federal courts are limited to hearing only certain types of cases under constitutional and statutory limits. Article III, section 2, of the U.S. Constitution limits federal court jurisdiction to cases arising under the Constitution, the laws of the United States, and treaties. It also extends jurisdiction to cases affecting ambassadors and consuls and to cases of admiralty and maritime jurisdiction. The Constitution also extends jurisdiction to controversies to which the United States is a party, controversies between two or more states, controversies between citizens of different states (known as diversity jurisdiction), and controversies between a state or its citizens against a foreign state or its citizens.

The Constitution also differentiates between the original and appellate jurisdiction of the Court. Original jurisdiction is the power of a court to hear and determine a matter before any other court does. The Supreme Court has this power with regard to cases affecting ambassadors, consuls, and those in which a state is a party. The remaining jurisdiction of the Court is appellate. Although Congress may not expand or curtail the Court’s original jurisdiction, the Constitution left the nature and scope of the Court’s appellate jurisdiction largely undefined. This flexibility resulted in many significant changes in the way in which the Court exercised its power to review and revise lower court decisions.

Traditionally, appellate jurisdiction has two purposes. The first is error correction. On appeal, rulings can be examined to ensure that they are correct and that the procedures that safeguard the substantial rights of the litigants were followed. The second purpose is to announce, clarify, and harmonize the rules of decision employed in a legal system. This is known as development of the law. Thus, appellate jurisdiction is concerned not only with the impact of a decision on a particular set of litigants but also with the impact on the affairs of persons other than the parties to the case it is deciding. In a system in which there are two levels of appeal, the error correction function is usually left to the first appellate level, and the law development function is left to the appellate court of last resort. In the United States, the Supreme Court’s role has gradually changed from that of error correction to that of law development.

Congress did not waste much time enacting its first major legislation dealing with the federal judiciary. In the same year in which the Constitution was ratified, Congress passed the Judiciary Act of 1789Judiciary Act of 1789. This act provided for basic appellate jurisdiction and created a three-tier judiciary staffed by Supreme Court justices and district court judges. The act established a circuit court consisting of one district court judge and two Supreme Court justices who would literally “ride the circuit” to hear cases and appeals from district court decisions. It also provided for appellate jurisdiction in the Supreme Court over civil cases from the circuit court in which the amount in controversy was in excess of two thousand dollars. (The Supreme Court did not have jurisdiction to hear appeals in criminal cases until 1889.) The act also gave the Court appellate jurisdiction to reexamine and “reverse or affirm” a final decision from the highest state court in which a decision in the suit could be had, where the validity of a federal law or a right was drawn into question and the decision was against validity.

During the United States’ first century, the Court was virtually the only federal appellate court. The Court was required to rule on all appeals brought from lower federal courts as well as those brought from state courts under the Judiciary Act of 1789. The only way to gain appellate review in the Court under the Judiciary Act of 1789 was by “writ of error” (later known as appeal). Under this method, sometimes called a “writ of right,” the Court was obligated to hear an appeal once it determined it had jurisdiction over the subject matter. As the United States grew, the caseloadWorkload of the Court began to swell. Data available starting in 1880 shows the number of cases filed in the Court increased tenfold. If the obligatory writ of right or appeal system had prevailed, the Court would certainly have had trouble managing such a caseload.

The Court acknowledged the significant power Congress has to expand or contract its appellate jurisdiction in Daniels v. Chicago and Rock Island Railroad Co. (1866). This does not mean, however, that the members of the Court have no influence over Congress when it comes to legislation affecting the Court’s appellate jurisdiction. Indeed, members of the Court actually had a hand in drafting one of the major pieces of legislation affecting the Court’s appellate jurisdiction in the twentieth century. Under the Judiciary Act of 1925Judiciary Acts of 1801-1925, the appeal of right was significantly curtailed and was replaced by what was eventually to become virtually the only avenue of appeal to the Court, the writ of certiorari. The groundwork for this shift from direct appeals to discretionary appeals was laid in 1891, when Congress created a new level of courts between the circuit and district courts and the Supreme Court. The Judiciary Act of 1891 provided for Supreme Court review over decisions of the new appeals court if the appeals court judges certified a case to the Court or the Court granted review by writ of certiorari. Automatic appeal was still allowed, however, in cases involving constitutional questions, treaties, jurisdictional questions, capital crimes, and conflicting laws.

Continuing this trend, the Judiciary Act of 1925 limited the appeal of right for cases from the appeals courts to those in which the appeals court held a state law invalid under the Constitution or federal laws. Appeals of right remained, however, for appeals from district courts in a small number of categories: antitrust, appeals by the United States under the Criminal Appeals Act, suits to enjoin enforcement of state laws, and suits to enjoin enforcement of Interstate Commerce Commission orders. This act and subsequent statutes that further limited the availability of appeals of right to the Court, reflected an important shift in the philosophical view of the Court’s function. Instead of error correction, the Court was to focus its efforts on cases raising issues of broad public interest.

By 1988, the trend of limiting appeals of right was nearly complete. In the 1988 Act to Improve the Administration of Justice, Congress virtually eliminated the Court’s nondiscretionary appellate jurisdiction. Today, the right of appeal exists only in cases that are required to be determined by a district court of three judges. The vast remainder of the Court’s appellate jurisdiction is through the writ of certiorari, which is granted or denied at the discretion of the Court.

A review on writ of certiorariCertiorari, writ of is granted “only when there are special and important reasons,” according to the Supreme Court’s rule 17. The rule goes on to list the types of reasons that may be considered by the Court in deciding whether to grant certiorari in a particular case. Some of the types of reasons justifying certiorari to a court of appeals are where a court of appeals decides a matter in conflict with another court of appeals, where a court of appeals has decided a matter in conflict with the decision of a state’s highest court, and where an appeals court has drastically departed from the usual course of judicial proceedings. Certiorari is also justified when the court of appeals or a state’s highest court has decided an important question of federal law that has never been decided by the Supreme Court or has decided a federal question in a way that conflicts with previous Court decisions. However, the rule makes it clear that the Court retains the discretion to deny certiorari even in cases that fall within these categories. A less formal rule employed by the Court in making certiorari decisions is the rule of four. Under this rule, a case is accepted for full review only if four members of the Court feel that it merits such consideration. However, it is employed, this power to select the cases over which the Court will exercise its appellate jurisdiction gives the Court considerable influence over the speed and direction of the law’s development.

In fact, the percentage of cases that the Court selects for appellate review fell steadily in the second half of the twentieth century. From the 1980’s to the 1990’s, the percentage of cases in which certiorari was granted dropped from around 10 percent to around 3 percent. For example, 2,441 petitions for certiorari were filed in 1992, and only 83 were granted.

The cases accepted for review also can reflect certain social trends. In 1933 cases involving due process made up only 5.2 percent of total cases accepted for review, whereas in 1987 those cases amounted to 29.6 percent of the Court’s docket. A similar trend can be seen in the increase in cases involving federal rights. Those cases represented about 1 percent of total cases in 1933, but nearly 11 percent in 1987. Other policy areas in which growth can be seen are equality, government benefits, and separation of governmental powers. The percentage of cases involving foreign affairs, federal regulation, economic regulation, state regulation, and internal revenue has steadily decreased.

• Two good sources with which to begin any study of appellate jurisdiction are David C. Frederick’s Supreme Court and Appellate Advocacy (St. Paul, Minn.: West Group, 2003) and Sara Catherine Benesh’s The U.S. Court of Appeals and the Law of Confessions Perspectives on the Hierarchy of Justice (New York: LFB Scholarly Publications, 2002). Frederick’s book includes a foreword by Justice Ruth Bader Ginsburg. One of the best sources for a summary of the appellate jurisdiction of the Court, as well as reprints of source documents such as the U.S. Constitution, the Judiciary Acts, and Supreme Court rules is Congressional Quarterly’s Guide to the United States Supreme Court, edited by David G. Savage (4th ed., Washington, D.C.: Congressional Quarterly, 2004). An excellent primer on appellate jurisdiction in general is Robert J. Martineau’s Appellate Practice and Procedure (St. Paul, Minn: West Publishing, 1987). Statistical information on the Court and its decisions can be found in The Supreme Court Compendium, written by Lee Epstein, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker (3d ed. Washington, D.C.: CQ Press, 2003). The Federal Judicial Center has several helpful publications, in particular, Creating the Federal Judicial System by Russell R. Wheeler and Cynthia Harrison (3d ed., Federal Judicial Center, 2005). In-depth information about the historical background of the Court’s appellate jurisdiction, including reproduction of some source materials in the Framers’ own hands, can be found in Julius Goebel, Jr.’s History of the Supreme Court of the United States: Antecedents and Beginnings to 1801 (New York: Macmillan, 1971).

Certiorari, writ of

Circuit courts of appeals

Circuit riding

Courts of appeals

Diversity jurisdiction

Judiciary Act of 1789

Judiciary Acts of 1801-1925

Oral argument

Review, process of