Part Two: Filings
In our first part of this three-part series, we looked at the Bench and the Bar. Today, we address filing in the Supreme Court.
In a typical term, more than 8,000 petitions are filed. Approximately 6,500 of these petitions are meritless In Forma Pauperis filings and 1,500 are booklet format petitions. The Court denies review in the vast majority of cases, and, in recent years, has issued full opinions in approximately 80 cases per term.
B. In Forma Pauperis v. Booklet Format
Upon a party’s motion to proceed IFP, the Court can elect to waive its $300 filing fee and standard formatting requirements (discussed further, below). Parties who were granted IFP status in the proceedings below often assume that they will be granted the same status on appeal. However, the vast majority of IFP applications filed with the Supreme Court fall short of demonstrating the degree of indigency required.
Most petitions the Supreme Court grants each term are filed in booklet format and docketed as paid petitions (wherein the petitioner has paid the Court’s $300 filing fee).
C. Petition Stage Filings
Once all of the petition stage briefs — the cert. petition, the brief in opposition, the reply brief (if any), and the amicus briefs (if any) — are filed, they are distributed to the Justices’ chambers. Most of the current Justices participate in the cert. pool, which is a labor-saving device in which a case is first reviewed by one law clerk in one of the seven chambers. That clerk prepares a memorandum about the case that includes an initial recommendation whether the Court should review the case; the memorandum is circulated to all seven chambers, where it is reviewed by the clerks and possibly the Justices there.
Only one current Justice, Justice Alito, does not participate in the cert. pool. Instead, his law clerks review the cases on their own and make recommendations directly to him.
Based on these reviews, the Justices can decide to add a petition to the discuss list — a short list of cases they plan to talk about at their next Conference (the name for the private meetings of the Justices). (If no Justice asks to add a particular petition to the discuss list, it will be put on the “dead list”, and cert. will automatically be denied without the Justices having ever discussed the case or voted on it.) If the Justices vote to grant review in a case, the Court announces its decision as part of an orders list, which is generally released on the Monday morning after the Justices’ private conference.
D. Merits Stage Filings
Once the Court has decided that it will hear a case, the parties are required to file a new set of briefs. Unlike the cert. stage briefs, which focused on whether the Court should review the case, each party uses the briefs on the merits to explain why they should win the case.
E. Supreme Court Rules
The Court’s rules dictate such matters as how to petition for writ of certiorari, how to be admitted to the Supreme Court bar, and how to conduct oral argument. A copy of the Court’s rules is available here.
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