Relist Watch: Special Memorandum Unit
John Elwood reviews recent guidance on cert-stage case scheduling
On February 14, the Supreme Court Clerk’s Office released a valentine for the bar: a new, four-page memorandum addressing cert-stage pleadings and the scheduling of cases for consideration at the court’s periodic conferences. The memorandum is the second in a series of occasional memoranda the clerk’s office issues for the guidance of counsel and litigants; the first such memo, addressing the filing of amicus curiae briefs, was released in October 2019. The memo promotes clarity by explaining in detail a number of the court’s practices on cert-stage scheduling that in the past largely traveled by word of mouth.
The new memo addresses some of the basics and some of the finer points involving cert-stage filings. Among the more basic: The memo makes clear that briefs in opposition are not required and discusses the process for obtaining extensions to file responsive pleadings and for formally waiving the respondent’s right to file them. Among the finer points, the memo notes that, as a matter of court practice, lawyers who are not members of the Supreme Court bar can both obtain extensions to file briefs in opposition and file waivers, but consistent with Rule 9, only members of the court’s bar can file a responsive cert-stage pleading.
The most helpful aspect of the memorandum is its discussion of the clerk’s office’s practice of distributing cert-stage papers. The memorandum explains that “[e]ach week, the Clerk’s Office distributes [to each of the justices’ chambers] two main ‘conference lists’ that identify petitions and other filings that will be considered by the Justices at an upcoming conference.” Cases for which the petitioner paid a filing fee (“paid” cases) are normally distributed on Wednesdays (moving up to Tuesdays between the end of April and mid-June). Cases in which the petitioner could not afford to pay the filing fee (“in forma pauperis” or “IFP” cases) are typically distributed on Thursdays (moving up to Wednesdays later in the term). The Supreme Court’s case distribution schedule for every term is available on the rules and guidance page of the court’s website.
“If it is clear that all respondents have waived the right to file a response to the petition,” the memo clarifies, papers will be provided to the justices for consideration during the next regularly scheduled distribution. To promote clarity about litigants’ intentions, the clerk’s office “encourage[s]” counsel to file the waiver forms that petitioners provide to respondents, rather than simply allowing the time to file a response to expire. “If the time to file a brief in opposition has passed, but the Court has not received either a brief in opposition or a waiver from each respondent, the Clerk’s Office will wait several days after the brief due date before distributing the petition … to account for the possibility” of delay in the brief’s arrival. If a brief in opposition has been filed, the case will be distributed with the next IFP or paid list “that is at least 14 days after the filing date for the brief in opposition,” unless the petitioner has waived that period.
The memorandum helpfully notes something that is often lost on practitioners with less experience before the court: Although “[t]here is no formal deadline for submission of a reply” brief at the cert stage, “many litigants … make an effort to have the reply on file before” the distribution date so the reply brief can be considered “along with the other filings in the case.” As a petitioner, you generally don’t want the justices and law clerks to read your opponent’s brief in opposition unless they have your reply ready at hand.
The memorandum also notes a matter of practice that is not set forth in the court’s rules. When the court calls for the views of the solicitor general (known as a “CVSG”), “[o]nce the Solicitor General’s brief is filed, the Clerk’s Office will” include the brief in the next distribution to chambers “that is at least 14 days after the date that brief is filed,” to “give the parties the opportunity to file a supplemental brief responding to the Solicitor General’s brief.” Thus, as a matter of practice, both parties will have as much time to respond to a CVSG brief as they do to file a reply brief.
For years, the court’s case distribution schedule has included not only paid and IFP lists, but also unlabeled lists of cases that were distributed on the first day of weeks with conferences. Relist nerds have long speculated that those unlabeled lists consisted of relisted cases — cases that the court was considering again after previously considering them at another conference. Turns out that was right. In a footnote, the memorandum explains that “[t]he distribution schedule also includes one list for each conference … [that] will include cases that were scheduled for a previous conference but not decided, and are ready to be considered again.” This list of relisted cases “is typically distributed on the Monday before conference.” The memo states, “[e]xcept in very unusual circumstances, the Clerk’s Office will not include a case on this list if it has not previously been scheduled for consideration at a conference.” The memo does not explain what kinds of unusual circumstances would warrant putting a non-relisted case on the list; my best guess is that this procedure would be reserved for highly time-sensitive petitions and applications.