Congratulations! Out of the thousands filed every term, your petition is one of the hundred or so granted by the Court. Or, as the case may be, tough luck: your opponent’s petition has been granted, and you must once again litigate your case. So now what!?
Your case is at the Supreme Court merits-stage, where the Court will take a closer look at the competing narratives, and make a conclusive determination of how the law should be applied. The Justices will make their decisions based on the written documents filed with the Court, and by a thorough examination of the parties’ attorneys in oral argument. In this first part of a three-part series, we will review the process of filing the parties’ briefs at the merits stage.
Petitioner’s Initial Filings
The petitioner will actually file two documents to open up the merits-stage briefing. Rule 26 describes the Joint Appendix, a single compilation of certain documents from the record below, as agreed to by the parties. We will discuss the JA more thoroughly in a later post.
The Petitioner’s Brief is the petitioner’s main opportunity to convince the Court to overrule the lower court, so this is where the petitioner must take his best shot. On the other hand, Rule 24.6 admonishes merits brief drafters to get to the point: “A brief shall be concise, logically arranged with proper headings, and free of irrelevant, immaterial, or scandalous matter. The Court may disregard or strike a brief that does not comply with this paragraph.” Or, as Eugene Gressman offers in his Supreme Court Practice, “
The content of the Brief is very similar to that of the Petition, except that the petitioner must now include a separate Summary of the Argument section, and the word limit is 15,000. The Petitioner’s Brief can include an appendix, but the petitioner may not append any document that could properly have been included in the JA. The brief is bound in a blue cover.
Both the JA and the Petitioner’s Brief are due 45 days after the Court grants the writ, however the petitioner can ask the court for an extension of time, and the Court will often set out a specific briefing schedule by order.
Later Filings
Within 30 days after the petitioner files—or by some other date set by order of the Court—the respondent must file the Respondent’s Brief. The content and word limit is the same as for the Petitioner’s Brief, except that the respondent need not reproduce certain sections if he is satisfied with the petitioner’s version. The cover is red.
The petitioner can then file her Reply Brief, due within 30 days after the respondent’s filing, except that the Reply Brief must be in court no later than 2:00 p.m. Eastern time a week before oral argument. Like the petition-stage Reply, the Supreme Court merits-stage Reply Brief must simply present argument in rebuttal to points made in the Respondent’s Brief. The word limit is 6,000, and the cover is yellow.
The experts at Cockle Legal Briefs are very experienced with the merits-stage brief process. Schedule your Supreme Court merits stage brief printing with us, and be sure that your brief will be accepted by the Clerk and docketed on time.