A haze of confusion often envelops Supreme Court filers attempting to analyze the Court’s distribution schedule to determine their reply brief’s due date.  After a brief in opposition has been filed, counsel for the petitioner may (but is not required to) file a reply brief to address issues raised by the respondent.

Most attorneys’ inclination is to file a reply brief sometime before the Clerk distributes the petition and brief in opposition to the Court for consideration.  This is a wise practice given that the Justices’ clerks begin writing cert. pool 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, (9th ed.) at p. 509 (“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 p. 4.

distributeUnder Supreme Court Rule 15.5, the Clerk will distribute the petition, brief in opposition, and reply brief for the Court’s consideration no less than 14 days after the brief in opposition is filed. The 14-day deferral period does not, however, always equate to the reply brief’s actual due date.  Since the Court only distributes once a week, the petitioner often has a few days beyond the 14-day period within which to respond.

For example, if a brief in opposition is filed on January 5th, 2015 and the 14-day period ends on January 19th, 2015, the next available distribution date for paid petitions is January 21st, 2015.  In this scenario, the due date extends beyond the 14-day deferral period.

We typically print a reply brief on the day before scheduled distribution so that we can email an electronic PDF version to Danny Bickell – the Deputy Clerk for Practice and Procedure – the following morning.  Mr. Bickell then distributes the PDF to the Court and awaits our paper briefs as they are processed through Anthrax screening.

You can determine the distribution date for your petition, brief in opposition, or reply brief by giving us a call or accessing the Court’s case distribution schedule.