Discretionary Jurisdiction: Definition & Cases

Instructor: Kenneth Poortvliet

Kenneth has a JD, practiced law for over 10 years, and has taught criminal justice courses as a full-time instructor.

Appellate courts often have discretionary jurisdiction to review cases presented to them for review. In this lesson we will look at the reason behind discretionary review and how that affects our judicial system.

Appeal That Case

To promote her first book, Jan posted excerpts on her social media page to generate interest. One day, she saw her book in a bookstore under a different author's name. She sued the author and publisher. She lost the trial, and her first appeal was unsuccessful. Her attorney appealed to their state's supreme court where she was sure they'd be vindicated. But the supreme court refused to hear the case. Is that right? Why won't the court hear the appeal when it appears obvious that the lower courts were wrong?


Jurisdiction is the authority of a court to hear and rule on a case. Without jurisdiction, the court can't hear the case. This is not only for trial courts, but appellate courts as well, and some appellate courts have the choice of not hearing that case. This is called discretionary jurisdiction.

Article III of the U.S. Constitution outlines the power of the federal courts, and federal law confers jurisdictional authority on the various federal courts. Likewise, the states have their own constitutions and body of laws that give their respective courts their jurisdiction. In both systems, the law gives them jurisdiction over a geographical territory, the parties and the subject of the case. A court must have all three of these to be able to hear a case.

Trial v. Appellate Jurisdiction

The jurisdiction to hear a trial case is called original jurisdiction which means that the court can hear the trial in that case. After the trial is concluded, any party to the case can appeal the ruling to a higher court. This is because state laws also give courts appellate jurisdiction over the trial court's actions and rulings. Appellate jurisdiction is the power of a higher court to review, revise and vacate a lower court's decisions.

The U.S. Circuit Courts take appeals from U.S District Courts within their territory. Circuit Courts typically have mandatory jurisdiction.
Circuit Court Map

Mandatory v. Discretionary Jurisdiction

There are two categories of appellate review: mandatory and discretionary. Mandatory jurisdiction means that the appeals court must hear every appeal that originates from the courts within its purview. This doesn't mean that it reviews every decision the lower courts render, but if a party to any lower court decision submits an appeal, it must review it. Some appellate courts have discretionary jurisdiction meaning that when an appeal is submitted by a party involved in a lower court's decision, they can choose to accept or deny the appeal. If they deny, then the last decision rendered stands, and there are no more appeals possible within that court system.

For example, let's say Ted is watching a ball game, minding his own business. The police bust in with guns drawn and throw him on the floor. At the police station, they tell him that the warrant was really for a different Ted who lived in a different home on a different street. But instead of letting him go, they book him because they find a bag of pot in his bedroom. At the trial, the prosecutor argues that the mistake was made in good faith, and the pot was in plain view. The judge agrees and Ted gets convicted.

Ted appeals and the first level of appeal courts have mandatory review, so they have to look at Ted's appeal. But they rule in favor of the prosecutor and uphold the verdict, so Ted appeals to that state's highest court. Typically, this court has discretionary review, so they can choose whether or not to hear the case. If they refuse to hear it, is Ted out of luck?

The answer is yes, in the state court system. However, since the issue at the center of the appeal is the Fourth Amendment's right against unlawful search and seizure, the U.S. Supreme Court can hear it as they have jurisdiction over any matter of federal law or the U.S. Constitution. But they also have discretionary review, so they could refuse, and Ted is out of luck.

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