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Beating Distribution: The Curious Math of Late Petition-Stage Filings

What is Distribution?

Very simply, distribution is the process of delivering petition-stage briefing documents to the Justices and their clerks for consideration prior to the conference. Shortly after distribution, a randomly assigned clerk in the Cert Pool (and a clerk for Justice Alito, who does not participate in the Cert Pool) will begin reviewing the case documents, and start work on a summary memorandum and recommendation.

Petition-stage documents that arrive after distribution will follow the earlier filings up to chambers, but there is no guarantee that they will receive the same attention as documents in the initial distribution. Consider that every term, Court personnel must review hundreds of thousands of pages related to over seven thousand petitions. If you were a clerk—having already read the petition and brief in opposition, made your notes, and moved on to the rest of your brief assignments—would you be prepared to give full attention to a late-arriving brief?

One leading authority had this to say about petition-stage reply briefs:

There is no prescribed time limit for filing a reply brief. To do any good, the brief must be submitted in time for the Court to read it before it acts on the petition. This means that, to be effective, the reply brief should be available to the Justices (or their clerks) when they read the brief in opposition shortly after the case is circulated. Gressman, et al., Supreme Court Practice 509 (9th ed., BNA Books, 2007).

When Is Distribution?

Distribution days are scheduled throughout the year, usually on Wednesdays. Generally, one of three events can trigger distribution: receipt of the respondent’s waiver of the right to file a brief in opposition; the lapse of the brief in opposition deadline without a filing; or, the tenth day after the filing of a brief in opposition—which may occur earlier than the scheduled due date.

Not only is the distribution date a critically important, de facto deadline for filers  in a particular Supreme Court case, but it also turns out to be a moving target. This is why the Court’s distribution order and conference calendar can be found at every desk here at Cockle Printing, and one of our very first training exercises is to calculate distribution dates under different scenarios.

Say you want to file an amicus brief in support of a certain petition. You check the docket and see that the Clerk has calendared the response for June 4th. And since you have read Rule 37.2(a), you know that your due date is also Monday, June 4th, and you clear your schedule to write the thing in the last week of May, for delivery to Cockle Printing by 10 a.m. Central Time on Friday, May 31st, to be filed on June 4th. Which is great news, because mid-May is a beautiful time of year, and you will really enjoy playing golf every day that week.

But not so fast, Friend Amicus. Because, if the respondent files a waiver on May 9th, the petition and any other petition-stage documents that have been filed might be distributed on May 15th, for conference on May 31st. If you file on June 4th, you will have beat the due date, but nobody will care, because the conference for that petition is over.

If you are considering a late petition-stage filing, be certain to note your due date, but also keep your eye on the docket, and watch for any distribution-triggering events. Be prepared to whip your draft into final form on short notice. And stay in touch with Cockle Printing so that we can check your distribution date calculation, and get your brief to the Court before that day.

Reply Brief Procedure

When a respondent files a brief in opposition, the clock starts ticking on the petition-stage reply brief, and the Clerk will distribute the case briefing “no less than 10 days after[.]” Rule 15.5. Check the docket for the brief in opposition file date, then—starting with the next day—count off the following ten days. Next, check the distribution order for the next scheduled distribution date, either on the tenth day, or after. Your “due date” for the reply brief is the day before the distribution date.

Since the anthrax attacks in 2001, the Court screens documents at an off-site location before bringing them into the building for review and docketing. To accommodate reply brief filing in time to make distribution, the Clerk’s Office has established a special process: first, we ship the printed brief by a method that will arrive at the screening facility no later than the morning of distribution; once we have confirmed delivery, we email a PDF copy to the Clerk’s Office, where a temporary, letter-sized version is printed off and place in distribution; later, the bound booklet version will catch-up to and replace the temporary copy.

This procedure is also available for supplemental briefs, addressing intervening matters not available at the time of the initial filing (Rule 15.8), or amicus briefs, in circumstances where the due date falls after distribution.

How Late is Too Late?

Briefs that arrive after distribution “will be circulated promptly upon filing.” Gressman, et al., Supreme Court Practice at 315. But the Court’s review process between distribution and conference is not set out in a publicly available schedule, and the evaluation status of an individual petition-stage case cannot be predicted with confidence. A late brief could catch-up before anybody has had a chance to read any of the briefing material. Or, the memo might already be complete, and in the Justices’ hands.

Gressman, et al. offers a couple of hints to help us gauge the impact of a post-distribution filing. For example, the Justices themselves will often review case materials, looking beyond the clerk’s memo, and this would suggest that missing the memo drafting stage does not absolutely preclude the opportunity for a late-filer to inform the final decision. Id. at 317. On the other hand, “[C]ases that do not appear on the list [of cases to be discussed in conference] by the day before the conference are automatically denied without even being mentioned at the conference.” Id. at 319. That would suggest that if a brief cannot be distributed in time to be read on or before the day before the scheduled conference, it will be irrelevant to the outcome.

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Disclaimer

Articles posted in the Cockle Blog are for informational purposes only. Nothing in the Cockle Blog should be taken for legal advice. In fact, Cockle Blog articles are not a substitute for proper legal research conducted by licensed attorneys.

Cockle Blog will occasionally provide opinions on certain cases and Court procedures. These opinions should be viewed with the recognition that no one can predict with certainty how the Supreme Court will rule on particular cases. Any reliance on articles contained in Cockle Blog must be done at one's own risk.