Increasing the odds for the Supreme Court to grant certiorari in your case is a supplemental discussion to preserving issues for appeal.  However, counsel should keep in mind that the Supreme Court, unlike any other court, operates without any review.  It has frequently decided issues that were not preserved or were not raised.  Less frequently, it has decided cases that reached it out of time.

 And unlike other courts it decides cases based on a large variety of persuasive sources.  Most recently, it raised controversy by deciding that juveniles should not be executed based in part upon international standards of decency.  History, legislation, practices in other jurisdictions, legal scholarship, statistics, studies, developments in technology and science and many other matters influence the Court’s decisions.

 However, it is of foremost importance that counsel seeking a grant of certiorari prepare a thorough petition and seek support for the grant of certiorari from the appropriate amici.  Remember, that  petitions are subject to a screening process.   Supreme Court Law clerks are given the work by all but one Justice to review the writs of cert and recommend whether each petition should be granted or denied.

 “In recent Terms, all but one Justice have pooled their law clerks in order to facilitate the consideration and disposition of the more than 7,000 petitions for certiorari, that are filed each year.  Under this pooling arrangement, all the law clerks in one chamber share the certiorari work with all the law clerks in each of the other seven chambers.
  Under the pooling arrangement, copies of all petitions for certiorari and opposition briefs ready for consideration by the Court are sent on a weekly basis to all nine chambers.  The Chief Justice’s chambers then randomly divides the week’s certiorari petitions, say 80 in number, into batches of 10 petitions and sends an assignment sheet to each of the eight chambers in the pool.  When a batch of 10 petitions has been assigned to a chamber, the law clerks within the chamber divide among themselves the task of reading each assigned petition and writing memos.  Memos usually contain the following information:
  (a) a statement as to whether it is writ of certiorari case or an appeal;
  (b) Identification of the Judge who wrote the opinion of the court below, and identifying any judge who may have written a concurring or dissenting opinion;
  (c) an outline of the facts and the lower court holdings;
  (d) Identification of the questions presented for review and the contentions of the parties with respect to why the case should or should not be given plenary review; and
  (e) the law clerk’s conclusions and recommendation as to whether the petition should be granted or denied.
  The completed pool memo is then sent to the Chief Justice’s chambers, which then forwards copies to all chambers and the pool.  Thereupon, a law clerk in each chamber in the pool examines the memo and ‘marks it up’ for his or her Justice.  The mark-up memo may simply note an agreement with the pool memo, or it may re-analyze the case and disagree with the recommendation of the pool memo.  Finally, all the pooled memos and the mark-up memos are given to each Justice, along with the petition and briefs filed by the parties.  In most cases, the Justice will read only the memos.  In difficult cases, and in cases where a grant has been recommended, the Justice may read the opinion below and parts of the petition and opposing brief.  As Chief Justice Rehnquist has put it,
  As soon as I am confident that my new law clerks are reliable, I take their word and that of the pool memo writer as to the underlying facts and contentions of the parties in the various petitions, and with a large majority of the petitions is not necessary to go any further than the pool memo.  In cases that seem from the [pool] memo to warrant a vote to grant certiorari, I may ask my law clerk to further check out one of the issues, and may review the lower court opinion, the petition, and the response myself.
  The Chief Justice then states an important caveat to this pooled law clerk procedure:
  When I get the annotated certiorari memos from my law clerks, I review the memos and indicate on them the way I intent to vote at conference.  I don’t necessarily always vote the way I had planned to vote, however; something said at conference may persuade me to either shift from a, ‘deny’ to a ‘grant,’ or vice versa.
 In other words, it is the Justice who ultimately must make his or her own judgment as to whether a certiorari petition should be granted or denied.  The certiorari pool memo is merely one factor, though an important one, that helps the Justice make a final decision on the matter.
  Moreover, as Justice Harlan once noted, ‘the question of whether a case is “certworthy” is more a matter of “feel” than of precisely ascertainable rules.’  That kind of ‘feel’ is something that no law clerk can address in a certiorari memo; nor can a clerk’s memo hide, let alone dictate, a particular Justice’s ‘feel’ that a given case comes within the Justice’s own agenda or that of the Court.  Nor is a law clerk’s recommendation capable of overriding, or even influencing, the Justices’ joint consideration of the case on the ‘discussed list.’  A case on that list means that the ‘certworthiness’ of the case will be discussed by all nine justices in their weekly conference from which the law clerks are excluded.  The relatively few certiorari petitions that are granted owe their success not to a blind following of law clerk recommendations but to the favorable vote of at least four justices following a conference discussion among all nine Justices.”  Stern, Gressman, Schapiro, Geller, Supreme Court Practice, pages 39-40 (eighth ed. 2002). 

It should be noted that while clerks are particularly sensitive to recommending the grant of certiorari.  It is considered bad form to recommend certiorari when the court subsequently decides that certiorari was improvidently granted.

 Starting with the basics.   The Court ‘s certiorari jurisdiction is not used to simply review the position of the defeated party in the Courts of Appeals.  As you well know, the Court exercises discretion with respect to writs of certiorari.  Therefore the Court’s jurisdiction has been fashioned to address matters of far-reaching importance, beyond the particular facts and parties involved in a case.  Certiorari will be granted to cases presenting important federal principles or questions that will affect a great many people and courts across the country.  About 3% of petitions for writ of certiorari are granted.
 Rule 10 of the Supreme Court Rules sets out the general rule for the grant of certiorari.
 “Review on a writ of certiorari is not a matter of right, but of judicial discretion.  A petition for a writ of certiorari will be granted only for compelling reasons.  The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of reasons that the Court considers:
  (a) a United States Court of Appeals has entered a decision in conflict with the decision of another United States Court of Appeals on the same important matter; has decided an important federal question in a way that conflicts with the decision by a state court of last resort; or has so far departed from the excepted and usual course of judicial proceedings, or sanction such a departure by a lower court, as to call for an exercise of this Court’s supervisory power;
  (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
  (c) a state court or United States Court of Appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.
 A petition for writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings were the misapplication of a properly stated rule of law.”

A review of the reasons that the Supreme Court granted certiorari in cases surrounding the area of law with respect to which you seek certiorari will provide guidance.   Or where the Court has engaged in dicta which the which the federal Courts of Appeals and state courts have applied with variations, this presents a certworthy area.  And where federal statutes leave terms undefined, certiorari may be granted to supply the definition or declare the statute is vague.

 It is to safe to say that where the Courts of Appeals or state courts of last resort refused to follow or fail to follow Supreme Court precedent, certiorari is likely.  This is considered the strongest area in which certiorari may be merited.

 Another area offering a good chance for the grant of certiorari is where the federal Courts of Appeals or state high courts reach differing results regarding the same federal question.  This area is traditionally referred to as a split.  A split may exist within a circuit court of appeals.  However, a split within a circuit is not considered sufficient reason for the grant of certiorari alone.  While a split in decisions concerning a federal question among courts presents attractive certworthiness, it is not a sure thing.  The Supreme Court often allows the courts to “percolate” the question and resolve the conflict themselves in “the laboratory” of their future cases.  Also, the importance of the issue upon which the courts are split is a factor in the cert determination.

 In recent years, the Court is likely to grant cert in order to re-examine Supreme Court precedent.  While traditionally certiorari is granted regarding points reserved or left undecided in previous Supreme Court cases, where a question concerns prior decisions of the Supreme Court which are inconsistent or cannot be reconciled, or where the decision is based on a Supreme Court opinion that needs clarification, the Court will also grant cert.

 Important constitutional issues.  In order to increase the chances that your case is granted certiorari it is important to argue not only that your case presents an important federal question, but that the question has broad implications beyond the parties involved in the case.  Whether yours is a case that involves American foreign policy, or involves disparate application of the same federal statute in different jurisdictions, it is imperative that you described the pressing and broad implications of the court’s failure to decide the issue.

 Of course, there are certain areas where certiorari is likely to be granted.  For example, some fact bound cases involving the 1St Amendment are frequently granted review.  As are cases involving the extent to which the government may become involved in personal and family decisions.  Finally, the court traditionally becomes involved in areas where it is setting the benchmark for constitutional rights.