Deep into Spring, as the days grow warmer, Nature begins to stir. And Supreme Court practitioners everywhere are consumed by a single thought, “Will my petition-stage case distribute for conference before the Summer Recess?”
On June 10th, the Court will distribute paid petitions for the last conference of the term, convened on June 26th. Petition-stage cases distributed afterwards will be held for the Justices’ end-of-summer conference on September 29th, when they will consider all of the petitions filed during the recess.
Litigants hold to different ideas about whether or not consideration in this Long Conference is favorable for the client. A petitioner may believe that their questions presented will have a more difficult time standing out in a crowded field of roughly 2,000 other petitions. Or perhaps the particular aspects of the case are more likely to grab the attention of the new judicial clerks—writers of the Cert Memos the Justices rely on to help inform their deliberations—who begin their tenure reviewing cases distributed over the summer. A respondent might not relish the idea of having to wait three months to finally reach the end of litigation. Or maybe some extra time will let them put together one last brief that will finally put an end to the upstart petitioner. There are about as many theories as there are commentators and cases.
Whatever your belief about the optimal distribution and conference date for your case, you might have some opportunities to massage the calendar. A petitioner wanting to avoid the Summer Recess might push up the petition filing date. If the respondent files a brief in opposition within fourteen days before distribution (see Rule 15.5), consider filing the reply brief early, or even filing a waiver of reply, if you believe distribution timing is particularly important to your petition.
A respondent seeking early consideration of the petition can file the brief in opposition ahead of the due date. Filing a waiver of response will result in immediate distribution—ending the thirty-day response period, and precluding any petitioner’s reply brief. (And if you think the petitioner may be lining up supporting amici to enhance their case, filing a quick waiver can really throw a wrench into amici briefing schedules, blunting or even excluding the allied attack.)
But as a practical matter, any party to a spring-due-date petition who would like to delay distribution into the summer will have the upper hand. The Court rarely declines a timely-filed request for extension, giving either party a rather effortless option to stretch the calendar out by thirty or more days.
At Cockle Legal Briefs, we are intimately familiar with the Court’s Rules, and we always have a court calendar and case distribution schedule near at hand. If you have any questions about your filing, distribution or conference, give us a call.