If you follow a big U.S. Supreme Court case in the news, you see an occasional milestone – certiorari petition filed, cert. granted, oral argument, and the decision – and you hear from the lead counsel for the two sides, along with all the commentary from talking heads.
If you follow it on the Court’s docket, you see far more activity from many more attorneys, organizations, and individuals with no formal role in the litigation. You also see how a Supreme Court case progresses from stage to stage.
This four-part series takes a docket-side look at one case reaching the Supreme Court in early 2015 and resulting in a decision early this year, with emphases on procedural timing and on the barrage of friendly fire coming at the justices from outside of the group of actual litigants.
You can find the related dockets for Federal Energy Regulatory Commission v. Electric Power Supply Association, et al., and EnerNOC, Inc., et al. v. Electric Power Supply Association, et al., by going to www.supremecourt.com and searching in Case Documents and Docket Search for “14-840,” which will also find the related docket for No. 14-841.
The discussion in the next three posts narrates how these combined cases moved from the petitioners’ decision to seek higher review and how they were nudged along by help from their friends at separate key points, first before the Supreme Court decided to review the decisions of the U.S. Court of Appeals for the District of Columbia Circuit, and then before it decided how to resolve the cases.
Most petitions for certiorari do not draw amicus curiae briefs to try to convince the Court either to accept review (or not) or to decide it one way or the other. And, by far, most petitions for a writ of certiorari are simply denied without comment. The odds of review rise with respect to certain kinds of parties or issues or consequences, but this review of the docket of these linked cases will make little mention of those factors.
The odds for acceptance probably were higher in these cases, which involved challenges to federal regulations by a federal agency and presented issues about limits on regulatory authority in circumstances affecting private companies, other governmental units, and the consuming public. The District of Columbia Circuit struck down a new rule by the Federal Energy Regulatory Commission because it encroached on the states’ exclusive authority to regulate the retail electric power market. It was not surprising that the high court took the case.
Decisions by non-party organizations and individuals to submit amicus briefs also are affected by such factors as the nature of the issues and the breadth of the effect of their resolution. One thing to keep in mind is that this case went from start to finish through a full court with a known history of decisions on related subjects. How a short court might affect amicus filings in particular types of cases remains to be seen.
Next: Seeking a decision to decide.