Practice Before the Supreme Court of the United States
| Publication year | 1995 |
| Pages | 25 |
| Citation | Vol. 64 No. 04 Pg. 25 |
64 J. Kan. Bar Assn. April, 25 (1995). PRACTICE BEFORE THE SUPREME COURT OF THE UNITED STATES
April, 1995
Copyright (c) 1995 by the Kansas Bar Association; Stephen R. McAllister
Introduction
The Supreme Court of the United States is unique among judicial institutions. As the final arbiter of the meaning of the federal Constitution and all federal laws, the Supreme Court probably wields more power than any other single judicial entity in the world. Despite the importance and the significance of its activities and decisions, however, the workings of the Supreme Court remain a mystery to many Americans, including practicing attorneys.
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This article attempts to illuminate some of the Supreme Court's practices and procedures for the benefit of those who may appear before the Court and, ultimately, for the benefit of the institution. The article's primary purposes are to provide the Kansas bar with some insights into the workings of the Supreme Court and a better understanding of the Court's concerns in selecting and deciding cases involving significant issues of federal law, as well as to identify and discuss some of the institutional constraints that affect the way in which the Court performs its work. In pursuit of those purposes, the article highlights certain especially problematic areas of Supreme Court practice. This information may be of interest not only to those who practice or contemplate practicing before the Supreme Court of the United States but also to those who simply are interested in the American system of government, the federal courts and the process of judging cases.
Part I of this article examines the process by which the Supreme Court selects its cases - the petition for a writ of certiorari (in the Court's jargon, a "cert petition" or sometimes just "certs") - which arguably is the most important part of the process. If a case fails to make it past this stage, and more than 95 percent of all cases filed in the Supreme Court do not, briefing and oral argument are irrelevant. Part II briefly considers some of the Supreme Court's procedures for handling applications and stay requests, with particular emphasis on its handling of stays of execution, a process that may become relevant for Kansas practitioners in the not too distant future. Part III discusses the lawyer's role in cases the Supreme Court has selected for plenary review. Finally, the article concludes with a brief summary of some of the principles that any attorney practicing before the Supreme Court might find useful to ensure that appearances in the Supreme Court are as effective as possible for the client as well as professionally satisfying to the attorney.
I. Filing a Petition for Writ of Certiorari [FN1]
A. General Considerations
1. Term, workload and law clerks
a. The Supreme Court's term [FN2]
The Supreme Court operates on an annual "term" basis, with each new term commencing on the first Monday in October. Thus, for example, a case filed between October 3, 1994 and September 29, 1995, would be given a docket number to reflect that it was filed in October Term 1994 (sometimes abbreviated "O.T. 1994"). The Supreme Court's tradition is to remain in session until it has issued opinions in all cases that receive plenary review during a particular term. Oral arguments in cases receiving plenary review the last several years typically have been held for two hours in the morning and afternoon on Mondays, Tuesdays, and Wednesdays for two weeks every month from October through April. Recently, the Supreme Court has held less oral arguments - sometimes not filling argument weeks or holding only morning sessions - because it has granted cert in considerably fewer cases than in the past. The Court then typically issues its final opinions in all argued cases by late June or, sometimes, early July. During its summer recess, the Supreme Court generally does not hold conferences or make decisions, except on emergency applications such as requests for stays of execution. The Court reconvenes the last week of September to dispose of all the cert petitions and other matters that have been received and examined during the summer months.
b. The Supreme Court's workload [FN3]
There is no denying the uniqueness of the nature and size of the workload of the Supreme Court of the United States. With respect to the Court's handling of its work, there are several important consequences and considerations for those appearing before the Court. First, and perhaps most important, is the fact that the Supreme Court has almost complete control over its docket. Through the mechanism of granting or denying writs of certiorari, [FN4] the Supreme Court can decline or agree to review cases for any reason, or no reason at all. Second, litigan.ts currently file almost 7,000 cert petitions annually. [FN5] Third, in recent terms, the Supreme Court has granted full review in less than 100 cases [FN6] and, even at its high water mark, the Court never granted review in more than approximately 150 cases per term. [FN7] Thus, statistically at least, there is approximately a one percent chance of having a cert petition granted, although the percentage increases or decreases slightly depending upon whether the calculation involves paid, in forma pauperis cases, or both, and whether the federal government's petitions are included. [FN8]
Paid cases, those in which the litigants pay the Supreme Court's filing fee, number approximately 2,000 per year and historically have a significantly higher success rate
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than in forma pauperis cases (often referred to as "ifp" cases), in which the petitioner is indigent and for whom the Court waives the docketing fee, as well as any other fees. [FN9] Ifp cases accounted for almost 5,000 petitions in the Court's most recent term and overwhelmingly involve challenges by state and federal prisoners to their convictions and confinement. For the last term, the success rate of ifp cases was 0.45 percent while in paid cases it was 3.7 percent. [FN10] The federal government, through the efforts of the Office of the Solicitor General - the official within the Department of Justice who is the federal government's representative in the Supreme Court [FN11] - typically has a high rate of success in the Supreme Court, and its cases are on the paid docket. Last term, the Court granted 16 of the 31 federal government cert petitions on which it acted. [FN12] Removing the federal government from the paid petition calculation results in a success rate of three percent in paid cases during the 1993 term. [FN13]
The foregoing facts highlight in a nutshell why the process of petitioning the Supreme Court for a writ of certiorari may well be the most important step in seeking and obtaining full review - as well as a favorable outcome - in the Supreme Court. For attorneys representing petitioners (the jargon the Court uses to refer to the losing parties in the lower courts), this means that, unless they just happen to have the case of the decade, they must do everything possible to improve the chances of a grant of certiorari if they think the Supreme Court is where their client ultimately may obtain relief. On the other side, however, attorneys representing respondents (the Court's term for the parties that prevailed in the lower courts) start the process with a tremendous advantage and far more often than not can be reasonably confident that the Court will deny the cert petition.
c. The law clerks [FN14]
Because of the tremendous workload, which includes an overwhelming volume of cert petitions (an average of more than 130 per week), preparing for oral arguments, writing opinions and handling various motions and applications, including last minute requests for stays of execution, the Justices rely heavily on their law clerks in performing some or all of their duties. Each Justice is entitled by law to four law clerks and most hire four, although a few have utilized less. [FN15] The law clerks generally are recent law school graduates. Although it once was not uncommon to hire Supreme Court clerks directly out of law school, that is a rare occurrence today. Rather, virtually all law clerks have clerked for a lower court judge prior to arriving at the Supreme Court. Probably more than 90 percent of the clerks have clerked for a federal court of appeals judge, many of them for judges on the United States Court of Appeals for the District of Columbia Circuit in particular. Occasionally Justices hire clerks who have clerked for federal district court judges. Rarely do the Justices hire law clerks from the state court systems. A few Justices have hired law clerks who remained with the Justice for more than one year, but that practice is relatively rare and, thus, each year there will be virtually 100 percent turnover in law clerks at the Supreme Court.
d. Practical consequences
Some important practical consequences flow from the Supreme Court's heavy workload, its reliance on law clerks, and the term system. Attorneys filing cert petitions in the Supreme Court must recognize that they are writing as much for the law clerks as for the Justices. At best, Supreme Court clerks have spent a year or two in the lower courts of the federal system and several months at the Supreme Court. At worst, they have spent one year in a lower federal court and are new to the Supreme Court and its work. From their prior clerkship experience, Supreme Court clerks are unlikely to have had much exposure to or be particularly interested in state law or commercial law issues. Both the law clerks and the Justices demonstrate remarkably little interest in commercial cases, even when they involve vast sums of money or are of considerable...
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