I was reading about certiorari, and I was under the impression that courts have the authority to request to review a legal case of a lower court without someone, such as a party to the case, petitioning for judicial review.

Let's say that someone has a legal case from 2011 that was in a lower court. However, due to various socio-economic factors, judges of a higher court catch wind that the rulings in that legal case may have been severely illegitimate, such as a failure of the lower court to have subject-matter jurisdiction. Consider that there are behind-the-scenes politics to the matter that might raise concern as to the legitimacy of the officers of the court who were involved with the legal case and to the mechanics of the legal system in whole. Presume that those in government want the case gone, such as to resolve any dispute that might escalate between the defendant of the legal case and the government from the case having been brought against the defendant in the first place.

Do the judges of the higher court have the authority to request to review the legal case that happened in the lower court, such to review the court case and make a decision on the legitimacy of the rulings that happened in the legal case?

I think this falls under judicial review, but I was under the impression that the doctrine of finality wouldn't allow something like review of a case without appeal.

  • I don't know, so I won't leave it as an answer, but can't a higher court find that a lower court judge misbehaved, thus triggering a re-trial? A kind of Judge shot some one in the court room, that's bad, so mistrial/re-trial?
    – coteyr
    Commented Sep 20, 2023 at 22:08

2 Answers 2


Do the judges of the higher court have the authority to request to review the legal case that happened in the lower court, such to review the court case and make a decision on the legitimacy of the rulings that happened in the legal case?


Many appellate court have administrative or supervisory authority over lower courts that are subject to them that allow them to promulgate court rules and administrative procedures (e.g. declaring courts in some or all of a state closed or subject to restricted hours due to a natural disaster or pandemic). But, this is something very different from a ruling on "rulings that happened in the legal case" in a court over which it has appellate authority.

Probably the greatest extent of the administrative power of the courts to act sua sponte is the authority of the appellate courts to consolidate related cases pending in multiple trial courts with a single trial court judge. Somebody has to petition to do this, but there doesn't need to be a petitioner requesting this in each of the cases to be consolidated.

In some extraordinary circumstances, a court that finds a party or viewpoint to be unrepresented, for example, when the state attorney-general refuses to defend the constitutionality of a state statute, can appoint counsel to present the views of that party or viewpoint to the court making the appointment.

Another prominent example of this being down is the Amistad case involving a slave ship in which the slaves had risen up, taken control of the ship and landed in a U.S. port, in which the court appointed an attorney to represent the mutinying slaves who did not speak English or have any understanding of the U.S. legal system or any funds of their own.

Another distinction is that some U.S. appellate courts have a limited original jurisdiction. Thus, even though the court mostly handles appeals from lower courts, there are a handful of matters which can be initiated in the first instance in what is usually an appellate court. For example, the U.S. Supreme Court has original jurisdictions over lawsuits between U.S. states, and can issue some writs based upon a petition filed in the first instance in the U.S. Supreme Court rather than in a lower court. More prosaically, the Colorado Court of Appeals can resolve some issues related to costs and attorney fees incurred in an appeal in the first instance in the appellate court. And, many state supreme courts have original jurisdiction over attorney and judge disciplinary proceedings, which a regulatory official in the judicial branch (who is not a judge) can initiate.

But, unlike, for example, the higher courts of France, which routinely audit a small percentage of trial court rulings, a U.S. appellate court cannot sua sponte (i.e. of its own accord) initiate review of a lower court ruling. This is a natural consequence of the "adversarial system" in the U.S. court system. Somebody has to petition a U.S. appellate court to do something before it can act with respect to proceedings in another court over which it has authority.

I would also note that there isn't necessarily an outright jurisdictional prohibition on such a review, although, in federal courts, the "case or controversy" requirement of Article III of the U.S. Constitution does impose some limitations.

For example, Congress passed a law a couple of decades ago that mandated the auditing of a random sample of bankruptcy cases. But, since this is conducted by an official other than a judge who can serve as a party seeking review of inaccuracies in a case or criminal fraud prosecutions, bankruptcy audits do not offend the "case or controversy" requirement, or the notion of an adversarial system in which appellate courts are purely reactive.

  • What if the higher court "promulgates" court rules to the effect of enabling a direct if but indirect judicial review based on the finding that the law does not prevent them from doing such. It appears that your answer of "no" was a hasty generalization. Commented Sep 20, 2023 at 4:05
  • @DennisFrancisBlewett U.S. appellate courts as constituted today do not review the decisions of other courts sua sponte. Speculation about what would happen if someone tried to do it is beyond the realm of "what the law is" in the United States.
    – ohwilleke
    Commented Sep 20, 2023 at 14:47

There is no role for a common law court without a controversy

It is a fundamental tenent of the common law that the only role of the courts is to resolve a controversy. That is, they decide only those matters that are brought to them, they don’t go looking for issues. It is on this basis that courts cannot give government pre-emotive advice on the legality of laws or regulations.

When a court ruled on a case there is no longer a controversy and the court is functus officio. If none of the parties lodge an appeal within the usually very strict timeframe allowed, the matter is over and can never be revisited. It doesn’t matter if the decision is clearly wrong, if the parties choose not to appeal, that’s the end of it.


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