Certworthiness As A Legal Proposition

If you're a Supreme Court clerk in his first month on the job, who now faces the daunting task of reading all those cert petitions and recommending some to the full Court for consideration, what would be helpful to you in deciding which petitions to recommend? Well, obviously the usual stuff that everybody knows about: A circuit split; a question of national importance; a well-known name on the cover of the petition. But you'd probably feel a lot more confident in your recommendation memo if you knew that the Court had previously granted a case where a circuit split was even less severe than in the current case.

Here's what Jeff Fisher said in the Wurie petition:

The issue has now been thoroughly ventilated. Numerous federal appellate and state supreme court decisions have explored the legal arguments arising from searching cell phones seized during arrests. Indeed, at least nine such decisions have already been issued – most with dissenting opinions – and some dedicating dozens of pages to the issue. See supra Part I.B. (By comparison, when the Solicitor General recommended, and this Court granted, certiorari in United States v. Jones, 132 S. Ct. 945 (2012), involving the propriety of warrantless GPS tracking, there were only four such opinions on the issue. See Pet. for Writ of Cert. at 20-23, Jones, 132 S. Ct. 945 (No. 10-1259).) These courts now openly acknowledge the increasing division. See, e.g., United States v. Wurie, ___ F.3d ___, 2013 WL 2129119, at *5 (1st Cir. May 17, 2013); United States v. Flores-Lopez, 670 F.3d 803, 805 (7th Cir. 2012); Smallwood v. State, 113 So. 3d 724, 733 n.5 (Fla. 2013); People v. Diaz, Pet. App. 47a n.17 (Cal. 2011). The First Circuit recently refused to consider the issue en banc, with two judges deeming such a rehearing pointless and calling instead for this Court to resolve the issue. United States v. Wurie, ___ F.3d ___, 2013 WL 3869965 (1st Cir. July 29, 2013). 

See Pet. for Writ of Cert. at 16-17.

Fisher treated certworthiness as though it were a legal proposition for which you might cite precedent. It was a bright idea.

Oh, and the Wurie petition was granted.