SCOTUS Clarifies Cert-Stage Procedures

The Supreme Court of the United States recently issued new guidelines to help practitioners understand its procedures (internal and otherwise) during the certiorari stage. While the guidelines do not appear to change established practice, they do help practitioners understand how the Court operates during this stage.

The guidelines clarify when a response is required and when it should be filed, along with how and when a motion to extend time to file a response may be filed. They also address how a waiver of the right to respond may be filed, and when a reply should be filed.

The last point has confused some practitioners. There is no deadline to file a reply on petition for certiorari. However, if the reply is filed before distribution to chambers, then it is included in the preliminary packet. There is an advantage to getting that “last word” in front of the Court from the beginning of their review.

To help understand the timing, the guidelines go on to describe when petitions are scheduled for conference. This timing depends on both certain case events and the type of case (“paid” versus in forma pauperis), so if you do have a case on petition, take the time to read the guideline so you can understand exactly when it will be set for conference, and then key your deadlines off that analysis.

These guidelines appear to be part of an ongoing process by the Supreme Court to help new or infrequent practitioners understand a system that can be a bit of black box, starting with guidelines on amicus briefing issued last October. Hopefully that process will continue.