There is often a haze of confusion regarding the timing and procedure for filing a reply brief on the petition stage. The Supreme Court’s Rules on this subject are somewhat vague on the timing and provide little guidance on the procedure for printing and filing reply briefs. This post aims to clear up any confusion on the process.
Most attorneys’ inclination is to file a reply brief before the clerk distributes the petition and brief in opposition to the Court for consideration. According to experts, this is a wise practice given that the Justice’s clerks begin writing cert. memos on the petition shortly after distribution. Without a reply brief in hand, there is the risk that a clerk will view the respondent’s contentions without rebuttal and craft a cert. memo accordingly. See Gressman, E., et al., Supreme Court Practice, at 509 (9th ed.) (“To do any good, the [reply] brief must be submitted 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.”); Bishop, T., et al., Tips on Petitioning for and Opposing Certiorari in the U.S. Supreme Court, at page 4, view here (“…the petitioner should aim to file a reply within ten days after the brief in opposition is filed so that the respondent’s arguments do not go (even temporarily) unchallenged.”); Bursch, J., Petitions for Certiorari: Understanding The Hidden Process, at page 1, view here (summarizing Supreme Court Chief Deputy Clerk Chris Vasil’s speech during a 2007 conference in which Vasil encouraged parties to file their reply briefs before distribution so that the cert. pool memo writer has the reply brief in the same package as the petition and brief in opposition).
Under Supreme Court Rule 15.5, the Clerk will distribute the petition for writ of certiorari and the brief in opposition for the Court’s consideration no less than 10 days after the brief in opposition is filed. The 10-day deferral of distribution period is not, however, the actual filing due date. Since the Court only distributes once a week, the petitioner will often have a few days beyond the 10-day deferral period. For example, if a brief in opposition was filed on August 24, 2009, and the 10-day period ends on September 3, 2009, the next available distribution date for paid petitions is September 9, 2009, and therefore, that is the actual filing due date.
You can determine the distribution date for your petition from the Court’s case distribution schedule, which can be viewed here.
The process for printing and filing a reply brief on the petition stage is straightforward. Once the distribution date is determined, it is our practice to print and mail the reply brief the day before distribution. Due to the 3,000-word limit for reply briefs, we can generally accept a reply brief the morning before briefs are sent to the Court. We email a proof that evening, and proof corrections are received before 10:00 AM Central Time the next morning. The brief is finalized, printed and mailed the day before distribution.
To give an example, the Court currently distributes on Wednesdays, thus a reply brief must be mailed by Tuesday. We could accept a reply brief as late as 10:00 AM Central Time on Monday and a proof would generally be sent by 5:30 PM Central Time that day. Corrections must be received by 10:00 AM Central Time on Tuesday. The briefs are then printed and mailed on Tuesday.
The Court’s anthrax screening process combined with the distribution schedule slightly alters our usual process for filing briefs on the petition stage. On the day of distribution, we confirm that the briefs were delivered to the Court. We then email an electronic PDF version of the reply brief to Deputy Clerk Chris Vasil. Since the paper briefs are sent off-site for screening, Mr. Vasil distributes the PDF version to the Court. The PDF is later replaced with the paper briefs once screening is complete.