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Supreme Court Takes New Aim at Unwritten Rules

Feb. 7, 2020, 8:08 PM

The U.S. Supreme Court issued its newest guidance in its ongoing effort to formalize previously unwritten rules for lawyers on its procedures.

The latest installment concerns scheduling at the justices’ private conferences and requests for Supreme Court review, known as petitions for certiorari or cert-stage petitions.

In October, the justices formalized informal rules relating to amicus, or briefs from outside parties.

The new guidance “does not appear to change any existing practices,” said Supreme Court practitioner and McDermott Will & Emery partner Paul Hughes.

It looks like this guidance, like the amicus one, “is intended primarily to make known to all (and official) rules and practices that have been unwritten but well known to regular Supreme Court practitioners for a while,” said Supreme Court veteran Sarah Harrington of Goldstein and Russell.

“The Court may have chosen to provide written guidance on these commonly-recurring procedural issues so that counsel who do not regularly appear before the Court may have a more fulsome appreciation of standard practices,” Hughes said.

For example, much of the new guidance centers on when petitions get scheduled for the justices private conferences, at which they discuss whether to take up a case or let the lower court’s ruling stand.

“Each week, the Clerk’s Office distributes two main ‘conference lists’ that identify petitions and other filings that will be considered by the Justices at an upcoming conference.” One is for “paid” cases and the other is for those involving indigent parties, known as In forma pauperis, or ifp, the court’s guidance said.

“If a brief in opposition has been filed, the case will generally be placed on the next relevant conference list that is at least 14 days after the filing date for the brief in opposition,” it says.

That timing allows for a reply brief to be filed.

If the respondent does not want to file a brief in opposition, “it is encouraged to file a waiver of the right to file,” the guidance says.

“If it is clear that all respondents have waived the right to file a response to the petition, it will be placed on the next relevant conference list ... after receipt of the waivers.”

Waivers can “trigger an earlier circulation of a petition,” Hughes said. The court often accommodates such requests, and the new guidance ensures that all parties are aware of this option, he said.

The guidance details requests for extensions to file a cert-stage petition.

The “Clerk’s Office will generally grant an initial extension of 30 days upon request,” the court said.

It encourages parties opposing such a grant to act fast “since these motions are routinely acted upon very quickly.”

A longer extension is possible but depend on the circumstances of the case.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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