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New Guidance on Cert-Stage Briefs and Replies

WASHINGTON, DC - NOVEMBER 30: United States Supreme Court (Front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (Back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett Kavanaugh pose for their official portrait at the in the East Conference Room at the Supreme Court building November 30, 2018 in Washington, DC. Earlier this month, Chief Justice Roberts publicly defended the independence and integrity of the federal judiciary against President Trump after he called a judge who had ruled against his administrationâ  s asylum policy â  an Obama judge.â   â  We do not have Obama judges or Trump judges, Bush judges or Clinton judges,â   Roberts said in a statement. â  What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.â   (Photo by Chip Somodevilla/Getty Images)
By Joseph Fawbush, Esq. on February 13, 2020 11:45 AM

While few attorneys argue before the U.S. Supreme Court regularly, SCOTUS does receive over 8,000 petitions per year. The number of amicus briefs submitted to the court has also risen steadily. In the 2018-19 term, for example, the Supreme Court received 729 amicus briefs. While that's down from the record 1,003 submitted in the 2012-13 term (a whopping 14 per case, on average), it is still a significant increase from decades past.

Perhaps the increased volume is one reason the Supreme Court updated its rules before the beginning of the 2019 term and is now issuing guides for attorneys who may not be familiar with some of more nuanced Supreme Court rules and scheduling procedures. This month, it issued another guidance regarding cert-stage briefs, waivers, and replies. This follows guidance issued at the beginning of the term regarding amicus briefs.

Cert-Stage Briefs

The Supreme Court updated Rule 14 to emphasize that attorneys must include a list of directly related cases so that justices can more easily determine whether they need to recuse themselves. Notably, a brief in support or opposition of the petition for writ of certiorari must also include a list of directly related cases so that the opposing party can highlight any potential errors or omissions.

Waivers

The recent guidance also encourages an opposing party to file a waiver if they do not wish to file a brief in opposition or support. Cert-stage briefs are not required except in capital cases. If there is a brief in opposition, the petitioner can file a response. There is no deadline for the petitioner's response, but the guidance tactfully points out that litigants typically get it in before the case is distributed for conference. In other words, there is a deadline, just not an official one.

Scheduling

Speaking of which, the guidance also clarified case distribution scheduling procedures. When the case is distributed to the justices depends on whether there is a waiver or brief in opposition. If a waiver is filed with the court, it will get scheduled sooner. If there is a brief in opposition, it will be scheduled 14 days after the brief in opposition is filed to give the petitioner a chance to reply.

The guidance also notes that the justices may ask the Office of the Solicitor General for input on the petition for writ of certiorari. If that occurs, the court will schedule the conference 14 days after the Office of the Solicitor General's brief is filed to give time for the petitioner to reply.

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