Prerogative writs

Several hundred years ago, writing was rare. Given the high cost of printing, as well as the cost of even learning how to read and write, only privileged members of society were literate. This gave rise to an interesting cultural difference: when a person issues an authoritative order, it meant a great deal more when the order was delivered in writing, as opposed to being delivered through speech. Mere speech was transient, and in any case, the recipient of the order could deny that it was ever delivered. On the other hand, a written order—also known as a writ—was much more difficult to deny, as it carried with it a permanence and air of high authority.

In the old Kingdom of England, there was a special class of writs reserved to high authorities (usually one of the King's courts), and some of these writs have continued to be promulgated today in countries beyond England, including the United States. In fact, you may have heard of at least some of them. They are the six prerogative writs:

1. The writ of certiorari. An order directing that a lower court send its record of a case to the higher court for review.
2. The writ of habeas corpus. An order directing that a person who is being detained against their will be brought before the court to determine whether the person detaining them has the authority to do so.
3. The writ of mandamus. An order directing that a government authority perform a specific act that they are required to do as part of their legal responsibilities.
4. The writ of procedendo. An order from a higher court directing that the lower court proceed to judgment in a given case.
5. The writ of prohibition. (Also known as the writ of prohibito.) An order directing that a lower court refrain from doing something that is beyond its jurisdiction or authority.
6. The writ of quo warranto. An order directing that a person who claims to have some power show what authority they have to exercise that power.

The writ of habeas corpus is probably the most famous of the English prerogative writs, as it is not only still used in the United States today, but it is the only prerogative writ that is mentioned in the U.S. Constitution, specifically the part of the Constitution known as the Suspension Clause (Article I, section 9, clause 2): "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

Back in January 2017, shortly after his inauguration, President Donald Trump issued an ill-conceived executive order that banned travel to and from multiple Muslim-majority countries. It was a poorly executed order because it resulted in the immediate detention of legitimate American residents returning from those countries from legitimate travel. Imagine the surprise when you're returning from a trip to see old family and suddenly upon your return to the United States, you are told you cannot leave the airport. At the time, some members of the legal profession were so distraught that they volunteered to travel to John F. Kennedy International Airport in New York, where many such individuals found themselves in this kind of detention. Dozens of attorneys appeared in droves, asking people walking out of the airport whether they saw anyone inside being detained. Working entirely for free, they sat on the floor of the airport drafting petitions for writs of habeas corpus, thereby asking a court to order that the immigration officials bring the detainees before the court in order to determine whether their detention is lawful.

The writ of certiorari is most likely the next best-known prerogative writ, especially if like me you follow the decisions of the Supreme Court of the United States. The modern Supreme Court hears the overwhelming majority of its cases on a writ of certiorari. According to the Court's official rules, "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" (Rule 10). If you believe that a federal appeals court or your state's highest court erred in its judgment on a matter of federal law, you may file a petition for a writ of certiorari in the Supreme Court, and in accordance with the Rule of Four, if at least four of the nine Supreme Court justices find your petition convincing, the Court will issue a writ of certiorari, thereby ordering that the lower court transmit to the Court its record of your case for review. (The Supreme Court denies the wide majority of the petitions for writs of certiorari that come before it. Your petition is more likely to be granted if it meets the considerations set out in Rule 10 of the Court's official rules.)

You may have also heard of the writ of mandamus. This writ is also petitioned for frequently in U.S. courts, particularly when someone believes that a government official is refusing to carry out a duty that they are legally responsible for. I have had a personal interest in this particular writ. In the state of Ohio, it is legal for seventeen-year-olds to vote in primary elections as long as they will be eighteen on the date of the general election. In the 2016 presidential primary election, this law applied to me: I was seventeen years old on the day of the primary election, but would be eighteen on the day of the general election. However, at the time, Jon Husted, the Secretary of State of Ohio, stated in the Ohio Election Official Manual that seventeen-year-olds may not vote in the 2016 presidential primary election. Citing a 1908 decision of the Ohio Supreme Court which defined primary elections as elections "held merely to name the candidates of a political party", Husted argued that because presidential primary elections directly elected delegates, who will then go to the party's nominating convention to nominate the party's candidate on our behalf, it is not considered a true primary election in the eyes of Ohio law.

We were beside ourselves, and as a seventeen-year-old myself, I participated in a demonstration in front of Secretary Husted's office in protest of his decision. On the day of the protest, we learned that a girl named Rachel Schwerdtfeger had filed a petition for a writ of mandamus in the Franklin County Court of Common Pleas, asking the Court to order Secretary Husted to allow seventeen-year-olds to vote in the presidential primary election as Ohio law specifically allows. The Court granted the petition, and Secretary Husted chose not to appeal it. Pursuant to the writ of mandamus, Husted issued a new directive to election officials, instructing them to allow seventeen-year-olds to vote in the presidential primary and ignore the instructions in the Ohio Election Official Manual to the contrary. The announcement of the writ of mandamus came at about 4:30 pm, right in the middle of our demonstration, and to this day, the moment when we announced our victory to the crowd upon hearing the news remains one of my fondest memories.

The other three writs aren't as well-known or used as frequently. The writ of quo warranto is used in some jurisdictions to challenge that a person who claims to hold a political office does not actually have the authority to hold such office. Perhaps they don't meet the office's eligibility requirements (for example, in order to be President of the United States, you must be 35 years old, have been born a U.S. citizen, and have lived in the United States for at least 14 years). In the state of California, in general "A quo warranto action may not be filed without the approval of the Attorney General [of California]". For the writ of procedendo, at least in the state of Ohio, you may petition a higher court for a writ of procedendo if you believe that a lower court "has either refused to render a judgment or has unnecessarily delayed proceeding to judgment". See State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St. 3d 461. The writ of prohibition is also still used in the United States today, although it is granted very rarely. It may be issued by a higher court "to prevent a court of peculiar, limited, or inferior jurisdiction from assuming jurisdiction of a matter beyond its legal cognizance". See "The Writ of Prohibition in the Federal Courts", 34 Columbia L. Rev. at 900 (quoting Smith v. Whitney, 116 U.S. 167, 176). In practice, if a court issues a decision beyond its jurisdiction, it may simply be reversed or vacated on appeal (or on a writ of certiorari from the U.S. Supreme Court).

Today, some of the writs continue to be litigated as high as the Supreme Court of the United States. Just six weeks ago, the Supreme Court clarified the scope of the writ of habeas corpus as it applies to U.S. immigration law in Department of Homeland Security v. Thuraissigiam, 591 U.S. ___ (2020). The case came on a writ of certiorari to the U.S. Court of Appeals for the Ninth Circuit. The question presented was whether the Suspension Clause prevents Congress from limiting the ability of courts to conduct judicial review on the decisions of immigration officers, specifically arising from a petition for habeas corpus. In a decision authored by the conservative Justice Samuel Alito, the Court held that in this case, the decisions of immigration officers is beyond the original intent behind habeas corpus, which "has traditionally been a means to secure release from unlawful detention", whereas in the case of Thuraissigiam, he "invokes the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country". Thuraissigiam, 591 U.S. ___ (slip op. at 2).

The United States inherited these prerogative writs from the English common law, and they are noteworthy because they are special kinds of written orders that courts may issue after careful judgment in order to establish justice. As I discovered as a seventeen-year-old, a writ of mandamus issued to the Secretary of State of Ohio directly affected my right to vote in a presidential primary election. Indeed, part of my motivation for writing this blog post is my belief that all residents of the United States, not just lawyers, should be aware of these prerogative writs because they can and do directly affect their legal rights, especially the writs of habeas corpus and mandamus.