It is extremely difficult to get the United States Supreme Court to hear your case. To do so, you need to file something called a petition for certiorari, which is a relatively complex document that describes your problem and your reasons for needing the Supreme Court to review your appeal. Very, very few petitions for certiorari get granted by the Court. The Court is busy and has limited time to hear cases. It is helpful if your case presents a new and novel question that has never been addressed before, or if it raises an issue about which the lower courts disagree. But even in those situations, a grant of your petition is not guaranteed. Having it granted, and then winning, is like hitting the lottery.
When I worked in the federal appeals court in Manhattan, we received many, many appeals from prisoners, claiming that their rights had been or were being violated. Most of these petitions were filed pro se – that is, on one’s own behalf, without the assistance of a lawyer. Some of them were handwritten. All of them were reviewed carefully, scrutinized even, to make sure that no claim with merit was overlooked. The vast majority of them were dismissed.
But every once in a while, a handwritten petition that has merit comes through the system and catches the attention of the judges. This happened fifty years ago, when a prisoner named Gideon wrote a handwritten petition to the Supreme Court claiming that he had been convicted because he had not been able to afford a lawyer. He asked the Court to declare that the Constitution required that poor people accused of serious crimes be given the assistance of a court-appointed lawyer.
Gideon won and got the legal assistance he needed from a young lawyer named Abe Fortas (who later became a Supreme Court justice himself). On retrial, Gideon was acquitted. The Gideon decision has become a hallmark of American life. We now take for granted that criminal defendants who cannot afford a lawyer will nevertheless be well-represented at trial.
Today, the Supreme Court is hearing another case that came from the grant of a handwritten certiorari petition. A prisoner named Kim Millbrook alleges that he was sexually assaulted by prison guards while serving time for various convictions (which are not in dispute). The prison conducted an internal investigation and found Millbrook’s complaint unsubstantiated. His original lawsuit, claiming that his Eighth Amendment right to be protected from cruel and unusual punishment, was dismissed on the grounds of sovereign immunity. That doctrine, roughly described, provides that the government cannot be sued for damages arising out of the intentional acts of its employees.
Millbrook is, by all accounts, what we law clerks used to refer to as a “frequent filer.” That is, he was experienced at airing his grievances in the federal courts. He filed a complaint every time he felt wronged. Handwritten petitions are seldom eloquent or easy to read, but they are always reviewed carefully and decided. Millbrook always lost.
But, in an unusual last-minute move, the Government reversed itself and sided with Millbrook on the current handwritten petition. It urged the Court to take up the issue of sovereign immunity, and the Court decided to do so. It appointed counsel to brief and argue his case, and today, Millbrook has a chance to make his case against one of the most firmly-ingrained concepts in American law.
Like winning the lottery, getting in front of the Supreme Court is a long shot. But winning a Supreme Court case, unlike winning the lottery, has the potential to change many lives and – this is no exaggeration - an entire way of thinking. I’ll be watching the case closely, and I hope you will too.