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, “