Definition
Certiorari is a writ issued by a superior court to an inferior court directing it to send up the record of a proceeding for review. The writ historically commanded the lower court to "certify" the record — to formally transmit it with a certificate of correctness and completeness — so the superior court could examine whether the inferior tribunal acted within its jurisdiction and according to law.
The term carries two distinct operational meanings depending on context:
1. COMMON LAW WRIT OF CERTIORARI: A formal order from a higher court commanding a lower court, tribunal, or administrative body to transmit the record of a proceeding — either pending or already concluded — for examination. The writ lay where the inferior court lacked jurisdiction, deviated from lawful procedure, or proceeded contrary to the course of the common law. On this traditional writ, review was confined largely to questions of jurisdiction and regularity, not the full merits.
2. DISCRETIONARY CERTIORARI (MODERN U.S.): The mechanism by which the United States Supreme Court — and many state supreme courts — exercises its discretionary appellate jurisdiction. A party petitions for a writ of certiorari; the Court grants or denies the petition. A grant — "cert granted" — means the Court agrees to hear the appeal. A denial — "cert denied" — carries no precedential weight and signals only that fewer than the required number of justices voted to hear the case. This modern usage retains the historical label but describes something functionally different: a gatekeeping device for selecting cases, not a writ commanding record production.
Common Language
Modern common usage (Wiktionary): A grant of the right of an appeal to be heard by an appellate court where that court has discretion to choose which appeals it will hear; also, a grant of review of a government action by a court with discretion to make such a review.
Historical common usage (Webster's 1913): A writ issuing out of chancery or a superior court to call up the records of an inferior court, or remove a cause there depending, so that the party may have more sure and speedy justice, or that errors and irregularities may be corrected.
The Webster's 1913 definition captures the classical writ — a remedy sought by a party claiming injustice or bias in the lower court. The Wiktionary definition reflects modern American appellate practice, where certiorari is understood primarily as discretionary selection by the reviewing court rather than a party-triggered corrective mechanism. The two definitions describe institutions that share a name but differ substantially in function: one compelled the lower court to act; the other grants the higher court permission to act.
Common Confusion
WRIT FUNCTION VS. MODERN PETITION PRACTICE
In historical sources, certiorari is a writ of right under defined conditions — the superior court issued it because the legal prerequisites were met. In modern U.S. federal practice, the Supreme Court's certiorari jurisdiction is almost entirely discretionary. Denial of certiorari is not a ruling on the merits and does not affirm the lower court's decision. Researchers reading historical materials should not import the modern "discretion to deny" framework into analysis of common law certiorari, where the writ issued as a matter of course when grounds were established.
Core Elements
At common law, certiorari issued when the following were present:
- A proceeding before an inferior court or tribunal of record
- A defect of jurisdiction, procedural irregularity, or departure from the course of the common law
- No adequate remedy by ordinary appeal or writ of error
- A petition or application to the superior court, supported by affidavit if required
In modern discretionary certiorari practice (U.S. Supreme Court), the operative considerations are not elements in the classical sense but factors — conflict among circuit courts, a significant federal question, or the importance of the issue to the development of law.
Why It Matters in Research
Researchers in the Law Mind corpus will encounter certiorari in at least three distinct procedural postures, and conflating them produces serious misreading.
First, historical materials from English practice treat certiorari as one of the prerogative writs alongside mandamus, prohibition, and habeas corpus. Its scope, availability, and procedure tracked English common law doctrine and was shaped by whether the inferior body was a court of record. Rapalje & Lawrence's entry, though fragmentary in this corpus, reflects English usage — including the Judicature Act 1873 framework — which is not the same as American state court practice of the same era.
Second, American state court decisions and treatises from the nineteenth century use certiorari as a primary vehicle for reviewing administrative and quasi-judicial action before the administrative law apparatus existed in its modern form. In these materials, certiorari fills a gap that mandamus and appeal could not. Bouvier's note that the writ lies where "procedure is not according to the course of the common law" is the key phrase — it defined the writ's domain in jurisdictions that retained the common law classification system.
Third, the modern federal usage — petition for certiorari to the Supreme Court — dominates popular legal vocabulary. Researchers using older dictionaries and treatises to understand modern Supreme Court practice will find the definitions misleading in their mechanical orientation. Conversely, researchers using modern appellate practice guides to interpret historical writ practice will miss the mandatory-versus-discretionary distinction entirely.
Anderson's entry is the most useful gloss on the Latin: quia certis de causis certiorari volumus — "for as much as concerning certain causes we wish to be certified." The writ's identity is the command to inform the superior court, not the consequence that follows. That framing helps researchers locate certiorari within the broader logic of record-based appellate review.
Historical Dictionary Support
The historical dictionary sources in this corpus converge on the basic definition — a writ from a superior court directing an inferior court to certify and transmit its record — but vary in emphasis and scope.
Black's (1st Ed.) provides the most operationally complete description, specifying that the writ runs to the inferior court before verdict and requires a certificate of correctness and completeness. The entry explicitly notes the writ's use for review or trial, capturing both the supervisory and the record-transfer functions.
Burrill's Law Dictionary offers the clearest Latin gloss — certior fieri, "to be made more certain; to be certified, or more distinctly informed" — and emphasizes that the writ issues from the superior court directed to judges or officers of the inferior court. Burrill's is the most attentive to the procedural mechanics.
Bouvier's notes the distinction between causes still pending and proceedings already terminated, and flags the common law restriction — the writ lies where "procedure is not according to the course of the common law." This limitation, often omitted from shorter definitions, is critical for understanding when certiorari was not available and why writ of error or appeal would be used instead.
Anderson's contributes the full Latin formula and is the only entry in this corpus to explain the etymological basis in certus (known, established), connecting the writ's name to its epistemic function: the superior court seeks to be made certain about what occurred below.
Rapalje & Lawrence, as reflected in the extracted text, focuses on English practice — specifically the use of certiorari to remove civil causes from inferior courts of record into the High Court of Justice — and references the Judicature Act 1873. This makes Rapalje & Lawrence most useful for researchers working with late nineteenth-century English procedural materials rather than American doctrine.
No historical dictionary in the corpus addresses the modern discretionary certiorari jurisdiction of the U.S. Supreme Court, which developed its current form in the Judiciary Act of 1925. Researchers requiring that framework must look beyond these sources.
Jurisdictional Note
In U.S. federal practice, certiorari to the Supreme Court is governed by statute and the Court's rules; denial is not precedential. Many U.S. states retain a common law certiorari writ — available to review administrative agency action — alongside or instead of statutory appellate mechanisms. English practice consolidated the prerogative writs under the Senior Courts Act 1981; certiorari became the quashing order now formally designated as a "quashing order" following the Civil Procedure Rules reforms. Researchers should not assume uniform availability or scope across jurisdictions.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Appellate Practice — Jurisdiction — Certiorari and Discretionary Review. See also: Prerogative Writs — Historical Overview.