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Practice pointer: Coordinating briefing in consolidated cases

Usually, the logistics of briefing a Supreme Court merits case are simple.  There is one petitioner and one respondent, with (sometimes) various amici.  The schedule is set by the Court’s rules, and the Clerk’s Office is very helpful in working out extensions if time is available before the case will be argued.  Even when there are multiple sets of parties in one case or when the Court consolidates two cases, the usual approach to briefing generally works smoothly.

Things get more complicated when the Court grants review in two consolidated, related cases, but the interests of the respective petitioners and respondents don’t correspond — for example, if the government is the petitioner in one case but the respondent in the other.  How should the case be briefed then?

That issue has come up in the two cases the Justices have agreed to hear presenting challenges to the “contraceptive insurance” Rule of the Department of Health and Human Services under Affordable Care Act: No. 13-354, Sebelius v. Hobby Lobby Stores (the government is the petitioner, the plaintiffs are the respondents); and No. 13-356, Conestoga Wood Specialties v. Sebelius (in which the roles are reversed).

It’s not completely silly for the cases to be briefed separately, because one of the cases technically presents as issue not present in the other: Hobby Lobby asks whether the mandate violates the rights of a business under a statute, the Religious Freedom Restoration Act.  Conestoga Wood Specialties makes that same RFRA claim, but also asks whether the mandate violates the business owners’ constitutional right of freedom of religion.  So, in theory, the government could file an opening petitioner’s and reply brief on the statutory question and a separate respondent’s brief on the constitutional question.  And the plaintiffs could do the reverse in their separate cases.

While that isn’t silly, it doesn’t make much sense either.  Both cases are religion-based challenges to the same statute.  So all of the legal background and a lot of the government’s justification for the law overlap.  It makes substantially more sense from the Court’s perspective if the government files a single, longer brief.  The plaintiffs have the right to file separate briefs on their separate issues – which the Court will expect them to do – but each sensibly would be filed simultaneously with that of the other plaintiff.

Presumably for those reasons, after it granted certiorari, the Clerk’s Office reached out to the parties to ask them to try and propose a joint approach to briefing the case.  This is another good example of the pragmatic approach of that office.  And since it is an uncommon request, the parties should take it as a substantial signal that the Court wants to change the alignment and wants to give the parties a chance to work out how.

As the Court suggested, the parties discussed the issue and they have now filed their responses.  Unfortunately, they are not very helpful to the Court.  That isn’t shocking.  The lawyers see their principal obligation as putting themselves in the best position to win their clients’ cases.  That almost inevitably means that each will try to insist on appearing as the petitioner, for a simple reason:  the petitioner gets two briefs and gets the last say in briefing.  It is accepted wisdom that the briefing is the most important stage of winning a Supreme Court case.  But the petitioner also can reserve time for rebuttal in oral argument, getting the last say there.  So the existing petitioners (the government in Hobby Lobby; the plaintiff in Conestoga Wood Specialties) are very unlikely to voluntarily give up those tactical advantages to their opponents.

That is exactly how the discussions seem to have played out.  The only common ground among the parties was that that the Court should not do anything at all to the parties’ briefing schedule.  Put another way, they knew the Court wanted them to agree on something, but because they could not agree on a change, they suggest leaving things the way they are by default.  But they do suggest that the Court allow all amicus briefs (supporting whatever side) to be filed several weeks after the petitioners’ briefs are submitted.

The letter of the Solicitor General also proposes an alternative solution:  the parties should be realigned in the Conestoga Wood Specialties case, so that the government  is treated as the petitioner in both cases.  It offers to file a single brief addressing both cases, and accordingly requests that its word length be increased.

The private plaintiffs indicate that their back-up proposal is the exact opposite:  the government should be made the respondent in the Hobby Lobby case, so that the plaintiffs in both cases get two briefs.  Their argument is basically that they are the little guy, up against the resources of the government.  But the government counters that if the Court were to accept that proposal, it would need even more words in its  bottom-side brief.

The plaintiffs in Conestoga Wood Specialties do propose a back-up to their back-up proposal.  They suggest – with some confusion about the proposal’s wording and how the Court’s Rules work that is not relevant here – that the parties file simultaneous briefs.

The proposals submitted to the Court by the parties seem to reflect their clients’ interests, rather than what will benefit the Court – no doubt for the understandable reasons I mention above.

If possible, the parties should be realigned.  It simply does not make a lot sense for the government to be filing – and the Court reading – substantially duplicative briefs on such closely related questions.

By default, it would make most sense to keep the usual three-stage approach of the petitioner’s brief, the respondent’s brief, and the reply brief.  That structure is almost always used because experience teaches that it best allows the arguments to evolve, and gives each party at least one opportunity to respond to the others’ arguments.

If that approach were applied here, so that the parties were assigned new roles in just one of the cases, I personally think the government would logically get to be the petitioner in Conestoga Wood Specialties given the presumptive constitutionality of the contraception mandate.   There is a precedent for this approach.  The Court granted certiorari in No. 07-394, Geren v. Omar (with the United States as the petitioner) and No. 66-1666, Munaf v. Geren (with the United States as respondent).  It ordered that the “consolidated brief” of the Solicitor General be filed first, later filed by the briefs of the private parties.

But the reverse seems to have been the true as well.  In the consolidated challenges to the Bipartisan Campaign Reform Act of 2002 (e.g., No. 12-1734), the plaintiffs filed first and the government second.

But there are exceptions that prove every rule, and this is a situation in which the three stages do not seem necessary.  There isn’t a lot to evolve.  The arguments are well known and – to be honest – not that complicated.  Each side already knows basically what the other is going to say.

For that reason, it surprises me that the parties did not settle on the simple solution of having all three parties (the government and the two sets of private plaintiffs) file simultaneous opening briefs (with the government filing a single consolidated brief) and then to file simultaneous “bottom side” responsive briefs.  Neither side gets an advantage.  Everyone gets an equal chance to respond to the other side’s argument.

Deleting one stage of the process also allows the lawyers (and lawyers for amici) to write better briefs.  If the Court retains all three stages, the petitioners’ briefs are due in early January and the respondents’ briefs are due in early February.  (Conestoga Wood Specialties makes the point that this schedule interferes with the holidays, but that won’t really concern the Court; if the lawyers want to enjoy their holidays, they shouldn’t seek cert. in significant cases.)  But it is true that if the lawyers do have more time they will prepare better briefs.

So the Court could order that simultaneous opening briefs be filed around January 27 (with amicus briefs due February 3), with reply briefs following around March 10.  That schedule gives the parties additional time for both sets of briefs, and gets the responsive briefs in the hands of the Court with an unusually long period of time before the argument (which will presumably be held in the last week of March or the first two days of April).

It is unclear whether the Court will take this path, both because it may see a better approach and because simultaneous briefing is unusual.  (However, that is primarily because this issue arises so rarely; it requires a perfect storm of an issue arising in multiple circuits simultaneously, with the government winning one case and losing the other, and the Court granting review in both.)  The Court is an institution that follows certain practices, and it generally orders simultaneous briefing only when it needs to expedite filings (eliminating one stage of the process) or is directing the filing of supplemental briefs.  For an example of the former, see the order granting probable jurisdiction in No. 11-715, Perry v. Perez.  This also seems to have been the approach in the famous Pentagon Papers cases:  No. 1873 (1971), New York Times v. United States, and No. 1885 (1971), United States v. Washington Post.

The government cites No. 99-11791, Zadvydas v. Davis and No. 00-38, Ashcroft v. Kim Ho Ma, as its most recent example of the Court not realigning the parties when the government was the petitioner in one case and the respondent in another.  But in that instance, one petition presented a statutory question while the other presented a constitutional question, without a great deal of overlap between the two.  On my quick review, it seems like the briefing of the issues there was quite distinct.  Another similar example of that phenomenon is the earlier constitutional challenge to the Affordable Care Act.  Here, by contrast, there is a great deal of overlap.

It will be interesting to see what course the Court takes.  It has been more flexible and interested in different approaches to these sorts of procedural matters in recent years.  So simultaneous briefing is a possibility.

Recommended Citation: Tom Goldstein, Practice pointer: Coordinating briefing in consolidated cases, SCOTUSblog (Dec. 5, 2013, 7:09 PM),