A challenging concept for new Supreme Court filers is determining the due date for the petition-stage reply brief. Here is the answer: there is no due date for the petition-stage reply brief.

reply briefPetitions have set due dates, determined by the concluding date of lower court considerations. Likewise, respondents and amici have clear deadlines, counting from the docketing date of the petition. But petition-stage reply briefs are not governed by an established due date. Read through every sub-section of the Court’s Rules and you will not find a single limitation on the time to file your reply.

The best practice for timely reply brief filing is to maximize the time the drafter has to compile and polish the draft, while filing early enough to give the reply argument maximum effect in the considerations of the justices.

The Court schedules one day each week to distribute petition-stage filings. The reply brief should be filed in time to be distributed with the other filings to ensure that it will considered along with the other briefs. Here is the schedule of distribution days for the current 2015 Term.

Rule 15.5 tells us that “the Clerk will distribute the

[petition-stage briefs] to the Court for its consideration no less than 14 days after the brief in opposition is filed[.]” The emphasis added here is significant. Rule 15 should not be read to infer that the reply should be filed by the 14th day. Rather, the Rule tells us that distribution will occur on the next scheduled distribution day, on or after the 14th day.

First, check the docket to confirm the brief in opposition filing date. Starting with the next day, count 14 days—including weekends and holidays. Finally, check the distribution schedule for the next distribution date, either on the 14th day, or after. Then call Cockle Legal Briefs to schedule your reply brief early enough to allow us to complete our work, and get your reply brief into Court and onto the distribution cart.

And missing distribution with a reply brief filing is not fatal. The Clerk’s Office will immediately distribute a reply brief that arrives after scheduled distribution. But there is no guarantee that the justices and their clerks might not have already read the other briefs, without having the benefit of the reply brief argument.

Though it is not set by the Rules, there actually is a de facto deadline. Every distribution date corresponds to a scheduled conference date (when court is in session, usually two or three weeks after the distribution). So, the distribution schedule not only gives the date that the briefs will be distributed, but also describes the date that the justices will sit in conference to make their cert decision about the petition. Any filing—including a reply brief—that is not in court by the day before the scheduled conference will not have a chance to be read and considered by the justices.