When the Supreme Court denied my petition for certiorari on March 2, there was no explanation. No reasoning. Just the name of my case in a long of other denials, closing the last door I had. The denial itself was not a surprise. I knew the statistics going in. What hit me was the realization that the entire certiorari process has no standard governing when review must be granted. The statutes simply say the Court “may” review cases. There is no law telling the Court when it must act. The problem is, though, they don’t need one. They granted themselves absolute power over the law in 1803. If they are the only ones that can be the final say on constitutional rights, then discretion is irrelevant.
That realization forced a choice. I could walk away from my case entirely. Or I could challenge the process itself. Now do I seem like that kind of gal that walks away?
I filed a Petition for Extraordinary Writ Sui Generis under Rule 20 and the All Writs Act, 28 U.S.C. § 1651(a). Never heard it? No one has. It’s one of a kind–sui generis. This is not a petition for rehearing. It raises entirely different questions. It invokes a different statute, one they can’t deny to review according to the law.
The petition presents two constitutional questions that have never been adjudicated by any court. First, whether the certiorari statutes violate the nondelegation doctrine by failing to provide any intelligible principle governing the Court’s discretion, particularly where no alternative supervisory authority exists. Second, whether the Court’s practice of summarily denying petitions for extraordinary writs without determining whether a writ is “necessary or appropriate” under § 1651(a) collapses that statute’s distinct standard into the certiorari framework and defeats the remedy Congress enacted.
The nondelegation doctrine requires Congress to supply an intelligible principle when it delegates authority to another branch. Sections 1254 and 1257 contain no such principle. They say the Court “may” review but provide no standard for when that discretion should be exercised. For decades this defect was tolerable because mandatory jurisdiction ensured some cases received merits review regardless of the Court’s preferences. But in 1988, Congress eliminated virtually all mandatory jurisdiction. Now the Court’s discretion is effectively total, and no statutory standard governs which cases are heard.
Rule 10 cannot cure this problem. The Court wrote Rule 10 itself to identify the types of cases that ordinarily warrant certiorari. But under Supreme Court precedent, a delegatee cannot cure an unconstitutional delegation by imposing limits on itself. The intelligible principle must come from Congress. The certiorari statutes contain none.
It is important to recognize that I did not independently formulate this argument. I conducted extensive research prior to writing this petition and was fortunate to discover a paper by a young lawyer in New York City, Dinis Chien. 1 The paper explores the theory that certiorari statutes violate the nondelegation doctrine by lacking any intelligible principle that governs the Court’s discretion regarding all petitions. Understanding that the Supreme Court of the United States (SCOTUS) could deny a broad claim—and likely would—I chose to narrow my focus. I concur with Chien’s assessment; however, if SCOTUS were to agree, it would mean they would need to manage 6,000 to 7,000 petitions each year, rather than the 60 to 70 they currently review. By limiting the scope to a specific responsibility they required of themselves, I was essentially calling “check” in a game of chess.
The petition also challenges how the Court treats extraordinary writ requests. Section 1651(a) says courts “may issue” writs “necessary or appropriate in aid of their respective jurisdictions.” That language is fundamentally different from the certiorari statutes. Discretionary review allows the Court to decline without engaging. Discretionary issuance requires evaluation. Before saying yes or no to a writ, the Court must determine whether issuance is “necessary or appropriate.” That determination is a judicial act requiring application of a statutory standard.
Yet petitions under § 1651(a) receive the same summary denial as certiorari petitions. The Court’s order lists do not distinguish between them. No denial indicates that the “necessary or appropriate” standard was evaluated. I researched the Supreme Court Shadow Docket Database spanning 32 Terms and found that across 3,202 mandamus petitions, the Court has not granted a single one. The last time the Court issued a writ of mandamus was 1962. Either the statutory standard has not been satisfied by any petitioner in over sixty years, or the standard is not being meaningfully applied.
The cert pool process explains how this happens. A single law clerk prepares a memorandum recommending disposition. That memorandum is not public. There is no mechanism to object to its characterization or correct errors in it. The Court itself acknowledges that approximately 97% of petitions are denied at a preliminary stage without joint discussion among the Justices. For § 1651(a) petitions, this creates a distinct problem. The petitioner has no assurance that an Article III judge ever evaluated whether the writ was “necessary or appropriate.”
My petition documents the practical consequences of these structural defects. The Fourth Circuit has denied at least 1,100 mandamus petitions through unpublished boilerplate orders that do not engage with the record and do not apply the Supreme Court’s mandamus standards. Those denials fall 96% on self-represented litigants. My certiorari petition in No. 25-768 presented this pattern to the Court. It was denied without explanation through the same framework used for routine case selection.
Article III creates a judicial hierarchy with the Supreme Court at its apex. When Congress creates inferior courts and channels appeals through the Supreme Court, only the Judiciary can correct judicial departures within that hierarchy. If the Supreme Court disclaims supervisory responsibility, no supervisory authority remains. Congress cannot vacate individual orders or determine whether lower courts comply with constitutional standards. Those functions belong to the Judicial Branch alone.
I have exhausted every supervisory mechanism available within the Judiciary and sought oversight from Congress. Judicial conduct proceedings address individual judges, not institutional failures across rotating panels. Impeachment addresses individual misconduct, not systemic patterns. I contacted members of Congress but was told they cannot intervene in individual cases. This petition exists because no other avenue remains.
The questions presented are fundamental and recurring. They implicate separation of powers, the nondelegation doctrine, the operative force of a federal statute, and the integrity of the Article III hierarchy. The Fourth Circuit pattern spans years and over a thousand mandamus denials. These issues are national in scope because the same statutes govern petitions from every circuit.
The record is fully developed and the questions are purely legal. No further factual development is needed. This petition asks the Court to honor the distinction Congress drew between discretionary review and discretionary issuance, and to apply the standard that § 1651(a) prescribes.
This is not a conventional case. It is a challenge to the structural framework that determines whether the judiciary can meaningfully supervise itself when constitutional rights are at stake and no other path to correction exists. The outcome will not affect only my case. It will affect every litigant who comes to the Supreme Court as a last resort and receives nothing but a one-line denial with no way to know whether the law was ever considered.
The Court received my petition today. I will provide a link once it is posted.
1 Dinis Cheian, “Absolute and Arbitrary”: How the Supreme Court’s Certiorari Power Violates the Nondelegation Doctrine, 50 BYU L. Rev. 963 (2025).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol50/iss4/7
Petition for Extraordinary Writ Sui Generis
- Dinis Cheian, “Absolute and Arbitrary”: How the Supreme Court’s Certiorari Power Violates the Nondelegation Doctrine, 50 BYU L. Rev. 963 (2025).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol50/iss4/7 ↩︎