Practitioners’ Reactions To Proposed Revisions To Supreme Court Rules – Part II
on May 31, 2007 at 11:06 am
In a prior post, we described some of the comments made by some experienced Supreme Court practitioners on proposed revisions to the Court’s rules at a forum hosted by the Georgetown Supreme Court Institute. This post continues that report, addressing revisions relating to the time limits for filing merits and cert-stage amicus briefs.
Deadlines for Merits Briefs
Under the new rules, petitioners still have 45 days after cert. is granted to file their opening brief. The time for the respondent’s brief has been reduced by 5 days (from 35 to 30). More substantially, the time for filing a reply brief has been reduced by 10 days (from 35 to 25).
Initially, there was also some discussion about whether any changes to the briefing schedule were needed in the first place. It was widely believed that the Court’s recent difficulties in filling its argument calendar are to blame – the Court has been required to expedite briefing in a number of cases this Term to fill empty argument slots in upcoming sittings. But some wondered whether it made sense to accelerate the briefing schedule in all cases to deal with that occasional problem.
Not surprisingly, it was the reduction in the time for the reply brief that caused the greatest comment and concern among practitioners. That reaction varied. Some noted that even under the Court’s proposed revision, parties still have more time to file reply briefs than is allowed in the courts of appeals (14 days). Some also noted that the number of issues that must be briefed in the Supreme Court is generally smaller than that in the courts of appeals, reducing the need for an extended briefing period.
Others, however, felt that the reduction in time was unfortunate, for many of the same reasons a number of people gave in favor of extending the page limits for reply briefs. They noted that petitioners’ counsel increasingly must use the reply brief to respond to an expanding number of amicus briefs filed in support of respondent, briefs that are getting longer and less overlapping. They also noted that in the Supreme Court – unlike the courts of appeals – counsel is often preparing for oral argument during the same time period in which the reply brief is being written (while the Supreme Court generally sets cases for argument a few weeks after briefing is completed, parties in the lower courts often wait for up to a year between briefing and argument).
Deadlines for Cert-Stage Amicus Briefs
The Court has also proposed revising the deadlines and process for filing amicus briefs at the cert. stage in support of the petitioner. Under the current rules, an amicus brief supporting petitioner is due the same day as the respondent’s brief. This generally means that the respondent has no opportunity to respond to the petitioners’ amici. Some participants noted that this has led some parties to engage in strategic behavior to ensure that respondent gets a chance to see those briefs before filing. One option is to waive the right to respond near the filing deadline, knowing that the Court will not grant cert. without ordering a response, by which point the amicus briefs will likely have been filed already. Another option is to take a last minute extension, again in the hopes that amici will file their briefs on the original due date.
The new rules attempt to avoid all of this through several new requirements. First, the rules mandate that any amicus brief supporting petitioner be filed 30 days after the petition, with no extension permitted. Second, amici must ensure that respondent receives notice of the intent to file an amicus brief at least 10 days before the brief is filed (unless the brief is filed more than 10 days early). Third, the rules expressly contemplate that upon receipt of that notice, respondent may seek an extension that would allow it time to read and respond to the amicus brief in the brief in opposition to cert. (Also of note, the rules give the Clerk’s office the authority to grant reply brief extensions now, something that previously required a motion to the Circuit Justice).
The group generally applauded the effort to ensure that respondent gets a chance to see petitioner’s amicus briefs before filing the brief in opposition. There were concerns, however, about the practicality of the notice requirement. Some practitioners noted that they sometimes get request to write an amicus brief less than 10 days before the filing deadline. Right now, law firms can accommodate those requests by burning the midnight oil, but under the new rules they would have to tell the party that it was simply too late.
Raising another concern, the rule appears to require that every party signing an amicus brief give the respondent notice. However, many noted that as a practical matter, it is common that a main party will draft an amicus brief that is then circulated among others who may wish to sign on to the brief, a process that often happens at the last minute. If, for example, Texas is writing an amicus brief, it may not know what other states are interested in signing on to the brief until late in the game, and the other states are unlikely to agree to sign on until they have seen the draft brief. All of this is difficult to orchestrate in 20 days.
At the same time, others noted that the identity of all the amici may be important to a respondent’s decision whether to seek an extension. For example, a respondent may decide not to seek an extension if told that an individual doctor is filing an amicus brief, but would feel very differently if the American Medical Association decided to sign on to the brief at the last minute.
It was also observed that the notice rule may impose a hardship on governments (particularly the federal government), which often do not decide whether or not to file an amicus brief until the last minute. Giving parties notice that the government is considering amicus participation would put the government in an awkward position if it ultimately decided against participation. It would also inevitably lead to attempts to lobby the government during the 10 days between the notice and filing deadlines.
Some also questioned why the revised rules require amici to file within 30 days even if respondent seeks an extension. Under the current rules, if a respondent obtains an extension, the petitioner’s amici effectively enjoy the same extension, given that their briefs are due at the same time a the respondent’s. Some noted that this additional time is often critical in allowing petitioner to round up amicus briefs. While it was acknowledged that petitioner already has more than 90 days to solicit amicus briefs while working on the petition, participants noted that as a practical matter, it is generally very hard to get outside organizations focused on the possibility of amicus participation until the petition is filed and, furthermore, those potential amici will often be unable to put together a brief within 30 days after that point. Thus, being able to take advantage of the respondent’s extension is often the difference between an amicus brief being filed or not filed. It was suggested that an unintended consequence of the proposed rule may be more requests for extension to file the cert. petition itself, if that is what is necessary in order to give counsel more time to line up amici.
One alternative that was suggested would be to make the petitioner’s amicus briefs due 10 days prior to the brief in opposition (including extensions), allowing amici to enjoy the benefit of any extension but still allowing respondent 10 days to review the brief and decide whether to seek a further extension in light of the filing. If there were a concern about stringing the process out too long, the rule provide that amici must, at all events, file their brief within 50 days of the petition, allowing them to take advantage of a first extension but no more.
There is also some ambiguity in the rule about what happens if the respondent waives its right to file a brief in opposition. Is the amicus brief still due within 30 days of the petition or, as some thought more sensible, within 30 days after a response is ordered?
A further ambiguity of lesser importance is how the rules will apply to cases pending on the date the rules become effective. For example, if the rules become effective 31 days after a petition is filed, does this mean that no amicus brief in support of the petition will be accepted? Or will the rule apply only with respect to petitions filed after the effective date of the amendments?
