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The Big Fall Conference: From Petition to Certiorari Decision

Around these parts, we call it the Supreme Court's BFC, or Big [Fall] Conference. Others call it the "long" conference. We're sure the clerks have their own nicknames for annual stack of around 2,000 petitions.

This year's BFC falls on Monday, September 29, and when it gets here, the justices and their clerks will have their work cut out for them, with thousands of petitions seeking SCOTUS review. Nearly all of those petitions, of course, will be denied, but each petition has to be reviewed by both the cert. pool (eight justices' combined clerks, who divide and conquer) and Justice Samuel Alito's independent team of clerks.

Let's trace the steps of these petitions:

Petition for Certiorari

SCOTUSblog has a lengthy description the petition to cert. decision path with examples, but since we're all legal professionals, we'll refresh your memory with a shorter version:

Within 90 days of a lower court's ruling, a party seeking review from the Supreme Court must file its petition for certiorari. These petitions typically outline the facts of the case, the lower court's ruling, and some arguably compelling reason for a cert. grant -- a circuit split, a decision that is clearly erroneous, or an issue of national importance.

The other party can waive a response, agree that cert. should be granted, or oppose cert. via a Brief in Opposition (BIO). The Court can request a response if a party waives its response as well. The original party seeking cert. typically files a reply brief within 10 days if there is a response.

And input is not limited to the parties: The Court can also "call" for the views of the Solicitor General (CVSG) on whether or not to grant cert. And, of course, third parties submit amicus briefs as well.

Cert. Pool, Alito's Clerks

Think about all of that paperwork: the petition, response or BIO, reply brief, CVSG, and amicus briefs, and that's just for one case. At this year's fall conference, there are 1,845 active cases awaiting a decision, plus another 278 sitting in the inbox for the October 10 conference.

Of course, all of these aren't reviewed in one week. As we noted last year in our discussion of the history of the cert. pool, the Court's clerks work all summer long to review the petitions and prepare a pool memo for distribution to the eight participating justices. The memo summarizes the case, the issues, and the clerk's recommendation (yay or nay) for certiorari.

Justice Samuel Alito is the only current justice who does not participate in the cert. pool. His clerks basically act as a second look for all 2,000 or more petitions.

Together, with the cert. pool memos and Alito's clerks' memos, the Court weeds through the massive summer backlog and grants a tiny fraction of them: 0.0375 percent of the entire year's petitions were granted in the 2012-13 session.

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