The All-Writs You Should Know About

What are writs?

It is a legal document issued by the court that orders a person or entity to perform a specific act or to cease performing a specific action or deed and is also a formal written order issued by anybody, executive or judicial, authorized to do so.[1] There are various types of writs, and we will briefly explain the same in this article.

The origin of writs is from the English common law system. In India, writs are provided as constitutional remedies and are guaranteed under Articles 32 and 226 of the Indian Constitution. In the United States of America, writs are issued under The All-Writs Act was enacted in the year 1911 and has gone through various amendments, the last one being in 1789.  The Act initially was part of the Judiciary Act of 1789 until it was later separated.

Section § 1651 of the Writs Act states, “(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.”[2]

In modern practice, the All Writs Act is used when a legislative scheme is incomplete or unclear.[3] However, the Federal Rules of Civil Procedure, adopted in 1938 to govern civil proceedings in United States district courts, has abolished particular writs by name.[4] As such, relief previously available under the writ system is now governed by the Federal Rules of Civil Procedure.[5] There Are mainly five important writs that we should know about, they are:

1. Habeas Corpus: Latin for “that you have the body,” is used to review the constitutionality of criminal convictions rendered by state courts.[6] A writ of habeas corpus directs law enforcement officials to bring the petitioner they are holding before the court so that the court may determine whether any aspect of the petitioner’s arrest, trial or sentence violated U.S. federal law.[7]
2. Mandamus: “A (writof) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfil their official duties or correct an abuse of discretion. According to the S. Department of Justice, “Mandamus is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance.”[8]
3. Quo Warranto: “The term “quo warranto” (pronounced both kwoh wuh–rahn–toh, and kwoh wahr-un-toh) is Latin for “by what authority”—as in, “by what authority does this person hold this office?” Current California law provides that the action may be brought either by the Attorney General or by a private party acting with the consent and under the direction of the Attorney General.”[9] For instance, a writ of quo warranto may be used to nullify an illegal municipal charter amendment or to remove an individual who illegally holds public office.[10]
4. Certiorari: “The word certiorari comes from Law Latin and means “to be more fully informed.”  A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it.  The U.S. Supreme Court uses certiorari to select most of the cases it hears.”[11]

“When the U.S. Supreme Court orders a lower court to transmit records for a case for which it will hear on appeal, it is done through a writ of certiorari. Certiorari is the common method for cases to be heard before the U.S. Supreme Court since it has specific jurisdiction over a very limited range of disputes. A supreme court has power to review the proceedings of all lower tribunals and to rule upon their authority to hear the case and their decisions on questions of law. However, the lower court’s determination on questions of fact will rarely be disturbed, although a state statute may authorize a higher court to do so.”[12]

5. Prohibitio: “A writ of prohibition is a judicial order that may be used, at a higher court’s discretion, to prevent a lower court from interfering with the higher court’s determination of a case pending an appeal. Writs of prohibition are sometimes issued to prohibit a lower court from issuing orders over matters it has no jurisdiction Alternatively, the writ may also be used to prevent re-litigating issues that have already been decided by a higher court.”[13]

Case Laws:

1. In LRM v. Kastenberg, 72 M.J. 364 “(the All Writs Act grants the power to all courts established by act of Congress to issue all writs necessary and appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law; extraordinary writs serve to confine an inferior court to a lawful exercise of its prescribed jurisdiction).”[14]
2. In the case of EV v. United States, 75 M.J. 331 “(CAAF clearly has authority, in a proper case, to grant mandamus and other extraordinary or prerogative writs under the All Writs Act, 28 USC § 1651; however, it is axiomatic that the All Writs Act is not an independent source of jurisdiction; it does not expand CAAF’s jurisdiction, but only operates “in aid of” its existing statutory jurisdiction).”[15]
3. In the case of Cheney Vs. United States District Court for the District Columbia,[16] held that, “In a 7-2 opinion delivered by Justice Anthony Kennedy, the Court sent the case back to the D.C. Court of Appeals, arguing that the appellate court should have considered separation-of-powers claims and was wrong to conclude it lacked authority to order District Court discovery to stop. Such an order (mandamus) to stop discovery proceedings should be considered because those proceedings, “by virtue of their overbreadth,” could interfere with presidential activity. Further, the appellate court misinterpreted U.S. v. Nixon to mean that the government needed to assert executive privilege for separation-of-powers objections to be considered.”[17]

Important Conditions to invoke provision of the All-Writs Act:[18]

1. The absence of alternative remedies—the act is only applicable when other judicial tools are not available.
2. An independent basis for jurisdiction—the act authorizes writs in aid of jurisdiction but does not in itself create any federal subject-matter jurisdiction.
3. Necessary or appropriate in aid of jurisdiction—the writ must be necessary or appropriate to the particular case.
4. Usages and principles of law—the statute requires courts to issue writs “agreeable to the usages and principles of law”.

There have been various ways the Act has been used, one in particularly in retrieving password protected mobile phones in combatting domestic terrorism and narcotics investigations. The Act’s use has been very controversial, what are your opinions? Let us know in the comment section.

[1] Writs in the Indian Constitution, By Mayashree Acharya, Jan 20th , 2023, retrieved from: Writs in the Indian Constitution (cleartax.in)

[2] USCODE-2011-title28-partV-chap111-sec1651.pdf (govinfo.gov)

[3] Hoffstadt, B. (2002). "Common-Law Writs and Federal Common Lawmaking on Collateral Review". Northwestern University Law Review. (pages 1460-1461)

[4] Legal Information Institute, "Rule 60. Relief from a Judgment or Order," 

[5] Writ - Ballotpedia

[6] Legal Information Institute, "Habeas Corpus," 

[7] Columbia Human Rights Law Review, "A Jailhouse Lawyer's Manual Appendix VI: Definitions of Latin Words Used in the JLM," Page 1075.

[8] mandamus | Wex | US Law | LII / Legal Information Institute (cornell.edu)

[9] Legal Opinions of the Attorney General - Quo Warranto - Right to Public Office | State of California - Department of Justice - Office of the Attorney General

[10] quo warranto | Wex | US Law | LII / Legal Information Institute (cornell.edu)

[11] writ of certiorari | Wex | US Law | LII / Legal Information Institute (cornell.edu)

[12] Certiorari Law and Legal Definition | USLegal, Inc.

[13] writ of prohibition | Wex | US Law | LII / Legal Information Institute (cornell.edu)

[14] TRIAL STAGES: Writs and Interlocutory Appeals: All Writs Act (uscourts.gov)

[15] Ibid.

[16] 542 US 367 (2004).

[17] Cheney v. United States District Court for the District of Columbia | Oyez

[18] Portnoi, D. D. (March 19, 2009). "Resorting to Extraordinary Writs: How the All Writs Act Rises to Fill the Gaps in the Rights of Enemy Combatants" (PDF). New York University Law Review: 293–322. Archived from the original (PDF) on February 21, 2016.