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Reason
Reason
Eugene Volokh

Federal Appellate Judges Can Petition the Supreme Court to Review a Question

Litigants often file "petitions for certiorari" asking the U.S. Supreme Court to review a case, or particular questions within the case. The overwhelming number of cases that reach the Court through such petitions. And occasionally one hears someone joking that a concurring or dissenting opinion in a court of appeals decision is the judge's own petition for certiorari: What that means is that the judge is pointing out that the court of appeals' rule is either incorrect or in conflict with other courts', and is hoping that when the losing litigant petitions for certiorari, the Court will read that dissent and perhaps be encouraged to grant the petition and review the case.

But it turns out that federal appellate judges (as few as a two-judge majority on a court of appeals panel) can themselves ask the Supreme Court to review a question, though technically the procedure is called a "certification" rather than a petition. Here's the federal statute, 28 U.S.C. § 1254:

Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;

(2) By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.

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