Tips for opposing certiorari for SCOTUS novices

Eric J. Magnuson and Ryan Marth,
BridgeTower Media Newswires

It was a great day. While working on a different matter, you got that ECF Notification from the court of appeals that your case had been decided. Suddenly, that other case was back-burnered while you clicked the link to read the court's opinion. Your initial anxiety eased when you read the word "Affirmed." Regardless of the court's reasons, you knew that you had won.

As you scrolled down, the opinion read like a legal work of art. You couldn't have written it better yourself. But in a way, you did write it, because the court adopted the reasoning you advocated in your brief, cited some of the same cases, and even repeated the themes you articulated during oral argument. Sure, perhaps the court announced a broader rule of law than it needed to, but that only reinforces how persuasive you were, right? You took a big swig of coffee and began dialing your client's phone number to tell her the good news.

Fast forward ninety days. You learn that your opponent has petitioned for certiorari to the Supreme Court, and begin reading through a professionally bound white booklet that explains all the reasons why the court of appeals' decision was wrong.

What do you do now? Here are some tips to demystify the high court and its certiorari procedures.

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You don't have to respond

In October Term 2016, the Supreme Court granted 69 of approximately 1500 petitions for certiorari, setting aside in forma pauperis petitions. If you're opposing cert, this is good news, because the chances of a grant are extremely low.

In light of the low odds of a grant, you may want to consider "waiving" your response. "Waiving" a cert response is not a "waiver" in the legal sense, but rather is akin to adopting a "wait-and-see" posture that allows the court's law clerks to evaluate your opponent's petition without having to file a response. This is standard practice in the Supreme Court. It is so common that you can waive your response by filling out the court-approved form that is attached to the notice of docketing that the petitioner is required to serve upon you.

When a brief in opposition is waived, the "cert pool"-seven justices' clerks who craft a common memorandum for cert petitions-draft a memo that describes the case, analyzes the parties' arguments in the petition and in any response, and recommends a disposition of the petition. After reviewing hundreds of petitions, the cert pool is quite adept at identifying weaknesses in petitions. If you elect to waive your response, the petition will be sent to the pool within a week, likely to be considered by the justices in conference about two weeks after your waiver is received.

"Waiving" a response is relatively low-risk way to speed up the time to denial and save your client money, while preserving your right to respond. The Court does not grant cert petitions without giving the respondent an opportunity to submit a brief in opposition, which it will do if any one Justice "calls for a response."

But waiver is not risk-free. The cert-pool clerks will initially hear only your opponent's side of the story and, although they will update their memo to address the arguments you make in opposition, the final product may retain a flavor of your opponent's arguments, upon which the clerks based their initial memo draft. Thus, they may be inclined to see more merit in the petition than they would if they had in hand a response that explained the flaws in petitioner's arguments.

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Engage a printer early

You've no doubt seen-maybe even marveled at-the colorful little booklets in which Supreme Court briefs are submitted. These largely originate from professional printers that focus on Supreme Court printing and filing. But the printers do more than simply print your briefs. They will format your brief, add required elements such as tables of contents and authorities, and advise you on the practical nuances of Supreme Court practice. They can even e-file your document for you. And the cost, considering the value added, is relatively modest. Printing, serving and filing a cert petition or opposition runs in the area of $1,000-$1,800, depending on whether you submit an appendix, and if so how large it is. The important thing to keep in mind is that you should engage a printer as soon as you decide to submit a brief in opposition so you can work hand-in-hand with them as your submission nears completion. Once you have a printer, they will set a timeline for submission of briefs and appendix documents, to ensure that your brief is filed properly and on time.

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Think about your audience

You've won before the court of appeals. You may have even won a jury verdict before that. Now your primary audience is the court's clerks-36 recent graduates from top law schools with previous high-caliber clerkship experience before joining the court, who spend large parts of their days reading petitions just like the one you're faced with. For the novice Supreme Court advocate, this means stating the legal issues concisely and accurately, not overstating the factual record or the legal support for your opposition, and avoiding hyperbole at all costs. Overstatement risks diminishing your credibility and increasing the chances that the clerks-and ultimately the justices-will closely consider your opponent's petition.

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Resist the urge to argue the merits

You need to keep in mind that at this stage, the issue is not who is right and who is wrong. Instead, the real question is whether the Supreme Court should care about the issue that shaped the outcome below. You have to answer those questions, and do so in a limited amount of space your brief can't exceed 9,000 words.

You truly believe that the Court of Appeals' decision was correct, so it's tempting to rehash the arguments that carried the day there. But now your purpose is different-you need to point out at least one reason why the court should not expend its limited certiorari resources on your case.

The court's rules-which you should have read by this point anyways-are a great place to start when formulating your arguments for denial. Rule 10, titled "Considerations Governing Review on Certiorari," indicates that the court is most likely to grant cert when there is a split among the circuit or the state courts on an important issue of federal law. The rule also advises that the court is unlikely to take a case "when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law."

The "circuit split" is mentioned prominently for good reason - the most frequent reason to grant certiorari is to resolve a split among the lower courts. Thus, convincing the court that there is not actually a split is an important part of your opposition. You can accomplish this by pointing out that the petition does not allege a split, or that the purportedly conflicting opinions are reconcilable with each other. The timing of the allegedly conflicting decisions is also important. If they are spread years apart, you can argue that the issue is stale and not recurring often enough to constitute an important issue, worthy of the court's attention. If the alleged split is too recent, you can argue that the issue should "percolate" in the lower courts before being resolved by the high court.

The court's distaste for reviewing erroneous factual findings or the misapplication of law opens up another potentially fruitful avenue for opposition - the "factbound decision." If you can argue that your case presents facts that are unlikely to recur or that the petitioner is really complaining about the application of those facts to the law, you will improve your argument for denial. Similarly, if the petitioner is requesting review of an esoteric state-law regime, it will strengthen your argument that the question presented is not significantly "important" to justify the court's attention.

As Rule 10 makes clear, the court is not interested in hearing disputes over state law. Yet a surprising number of petitions present repackaged state-law questions. If you can argue that the petitioner is truly upset about a state's law or its application, you should point this out to the court, citing Rule 10 in your opposition.

While not stated directly in Rule 10, the court shies away from even important questions of federal law when the case is an inappropriate "vehicle" to resolve the issue. A complicated procedural history or factual record or a deferential standard of review often indicate vehicle problems. Arguments that your opponent failed to properly preserve the question presented should also be pointed out. Likewise, any aspect of the case that would stand in the way of the court articulating a clear rule of law should be highlighted in your opposition as an indicator of an improper vehicle for certiorari.

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Don't be intimidated! Court is user-friendly

This article didn't answer all of your questions? Relax. The court provides plenty of helpful guidance on its own. The rules are concise and well-written and contain relatively few ambiguities. If the rules do not directly answer your question, the court's website-especially the "Guides for Counsel" section-is a helpful source of practical information. If you still have questions, the clerk of court is willing to answer practical questions and provide guidance to Supreme Court novices.

Finally, there is a well-defined elite group of appellate practitioners who live daily in the rarefied air of SCOTUS practice, and some write regularly about the ins and outs of that work. One particularly helpful source is the SCOTUSblog - published by the Goldstein & Russell firm. And one thing is pretty certain - if your case has even a whiff of certworthiness, you stand a good chance of being contacted by one of them, offering their services to help your client. It's common for clients to retain these SCOTUS veterans when it comes to the merits. But when it comes to responding to a petition for certiorari, don't sell yourself short. You can navigate that part of the process and confidently represent your client.

Good luck on your opposition!

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Eric Magnuson is a partner at Robins Kaplan. Ryan Marth is a principal at the firm.

Published: Mon, Mar 26, 2018

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