Merits Stage: Once the Court granted certiorari in the consolidated cases, moving it from the petition phase to the merits phase, the Court’s focus shifted from whether to decide the dispute to how to resolve it. And that called for a whole new round of briefing from the parties and any old or new “friends.”
The order granting certiorari automatically set 45 days as the time for the petitioners to file a joint appendix and petitioners’ brief on the merits. The Court granted a motion by petitioners and extended that date from June 18 to July 9, 2015 (not for a full month). Without motion, the Court also set the due date for the respondents’ merits briefs for August 31, though the rules otherwise would have set that date at August 8 (30 days after the petitioners’ date).
An effect of this timeline for the parties’ merits briefs was to set the deadline for amicus briefs supporting the petitioners (or supporting neither) as seven days after the petitioners’ new due date and the deadline for amicus briefs supporting respondents as seven days after the respondents’ date.
The summer of 2015 brought a flurry of friendly interest that had not been there when the case was only potentially before the Court. Whether the now-known recusal of a particular Justice encouraged more or fewer amicus filings cannot be told from the docket, but an amicus brief can be a significant investment, and the odds of success may be calculated in terms of which Justices will decide the case.
In anticipation of some unknown number of amici writing to the parties’ attorneys for specific consents to filing briefs, several blanket consents were filed with the clerk.
After the petitioners in the two consolidated cases and three nominal “respondents” aligned with the petitioners filed their merits briefs and joint appendix on July 9, a total of 10 amicus briefs arrived for filing a week later in support of the petitioners or neither party. (Again, the docket does not specify which side an amicus is taking, but the timing suggests as much, as amici supporting the respondent have a later deadline.)
Two merits briefs for respondents (the real respondents opposing the petitioners) came in on August 31, one of which was by a respondent who had not filed a separate brief at the petition stage. Then, a week later, eight amicus briefs were filed to support the respondents’ side of the dispute.
The petitioners and the supportive respondents had 30 days after the respondents’ briefs to file reply briefs, and both petitioners and two of the respondents did so. Amici have no opportunity to offer additional argument at this point.
As the second wave of amicus briefs was coming in to support the respondents, the Solicitor General (counsel for the federal agency) moved for divided argument, and a couple of weeks after the last of the reply briefs, the Court heard argument in the case.
Between the October 14, 2015 argument and the January 25, 2016 decision, the parties and all their friends waited. The 6-to-2 decision was to reverse and remand the case to the Circuit Court.
Next: The final part looks a bit closer at the “friends” who offered their perspectives to the Court.