Editor's Note :

Editor's Note :

At 9:30 a.m. on Monday we expect additional orders from the Court's November 25 Conference. On Tuesday, December 2, we expect one or more opinions in argued cases; we will begin live blogging at this link shortly before 10:00 a.m.

Supreme Court Procedure


To help illustrate the terms and concepts you will often encounter in discussions of the Supreme Court, we have written an imaginary Supreme Court case.  We will be creating permalinks to this post on the blog as well as on SCOTUSwiki.

Pretend that the plaintiff (Mr. Lyon) is suing the defendant (his employer, the state-run Animal House Zoo).  Mr. Lyon, who is white, scored higher than Mr. Behr, who is black, on an exam that qualifies employees for promotions.  When the exam was scored, however, the zoo threw out the results because it worried that promoting a white candidate over a black candidate would leave it vulnerable to allegations that it had violated Title VII of the 1964 Civil Rights Act, which prohibits racial discrimination in employment.  Mr. Lyon sued the Animal House Zoo, arguing that by throwing out the results of the exam, the zoo violated under his rights under Title VII. (The Supreme Court addressed a case with similar facts last year when it decided Ricci v. DeStefano.)

Here, we’ll look at the life of our hypothetical case, Lyon v. Animal House Zoo, focusing on proceedings in the Supreme Court.

Lower Courts

Mr. Lyon is suing his employer, the Animal House Zoo, because he believes that the zoo violated his rights under the Civil Rights Act and the U.S. Constitution. He begins his lawsuit by filing it in the federal district court that is, a federal trial court  responsible for considering federal cases in the area where he lives and works.  After hearing arguments and receiving evidence from both  Mr. Lyon and the zoo, the district court decides that the zoo did not violate Mr. Lyons rights.

Unhappy with the trial court’s decision, Mr. Lyon appeals it to the U.S. Court of Appeals for the Second Circuit, one of thirteen federal appellate courts which review appeals from federal district courts.  A panel of three randomly assigned judges reviews the case and affirms the district courts ruling that the zoo cannot be held liable for its actions, because by throwing out the exam results, it had simply been trying to fulfill its obligation not to discriminate under the Civil Rights Act.

At this point, Mr. Lyon has to choose between petitioning the Supreme Court or seeking rehearing from the three judges or all the judges on the Second Circuit (a procedure known as filing a petition for rehearing en banc).  Mr. Lyon chooses the latter option, but the court denies his request.

Petition for Certiorari

From the day the Second Circuit denies his petition for rehearing en banc, Mr. Lyon has ninety days to file a petition for certiorari (often called a "cert. petition"), which is a brief asking the Supreme Court to hear his case.  (If Mr. Lyon had won in the lower courts, the zoo could have filed a cert. petition.)

Mr. Lyon can request that the time be extended.  At least ten days before the due date (absent extraordinary circumstances), he can file a motion requesting more time.  That request would go to the circuit justice  i.e., the member of the Supreme Court responsible for the Second Circuit.  That is now Justice Ginsburg.  Only Justice Scalia rejects almost all such requests; the other Justices vary in their willingness to grant them.  The time can be extended for a total of up to sixty days.

In his cert. petition, Mr. Lyon sets out the facts, the history of the case, and the reasons why the Supreme Court should review the Second Circuit's ruling.  He tells the Court that it should grant review not only because the Second Circuit's opinion is wrong but also because, by doing so, the Court can clarify ambiguities in both the Civil Rights Act and the Constitution.  (In addition to focusing directly on the legal questions at issue in the case, cert. petitions often point to disagreements between courts of appeals about those issues and ask the Supreme Court to resolve those disputes by setting a precedent that the lower courts must follow.)

Once Mr. Lyon's cert. petition is filed, the zoo had three options: it can acquiesce, which means that it can agree with Lyon that the Court should grant certiorari (opt to hear the case); it can waive its right to file anything responding to the cert. petition (although the Justices, after reading the petition, could still ask the zoo for its response); or it can file a brief in opposition (BIO).  The zoo chooses the third option:  therefore, once the cert. petition is placed on the Supreme Court's docket, it has thirty days to file its BIO.

That deadline can be extended as well.  The request is made to the Clerk's Office.  One request will be granted as a matter of right.  Later requests generally require the petitioner's permission.  There is no limit on the number of extensions.

Because it agrees with the Second Circuit's decision and wants that ruling to prevail, the zoo argues in its BIO that the Court should deny Mr. Lyon's cert. petition and choose not to hear the case.

After the BIO has been filed, Mr. Lyon can (but is not required to) file a reply brief, rebutting the points made by the zoo in the BIO and reiterating the arguments made in his cert. petition.  Unlike the cert. petition and the BIO, which need to be filed with the Court on strict deadlines, the exact timing of the reply brief varies.  A general rule of thumb, though, is that you want to file your reply brief approximately ten days after the BIO is filed.

Before the Court decides whether to hear Mr. Lyon's petitions, outside groups or individuals with an interest in the outcome of the case can file briefs telling the Court why it should grant certiorari.  These groups or individuals are known as an amicus curiae (singular) or amici curiae (plural), which is Latin for "friend of the Court"; the briefs that they file are called amicus briefs.  (At the certiorari stage (or "cert.-stage"), when the Court is deciding whether to hear the case, amicus briefs are normally only filed by groups or individuals who agree with the petitioner that the Court should review the case.)

Cert. stage amicus briefs are due 30 days after the petition is docketed.  That deadline cannot be extended.  The amicus must give the respondent 10 days notice, to give the respondent time to take an extension and review the amicus brief before it files the BIO.  But if the respondent takes the extension anyway, the Clerk's Office may find that the failure to follow the rule was harmless and excusable.

Once all of the cert. stage briefs "“ the cert. petition, the BIO, the reply brief (if any), and the amicus briefs (if any) "“ are filed, they are distributed to the Justices' chambers. Eight of the nine current Justices participate in the cert. pool, which is a labor-saving device in which a case is first reviewed by one law clerk in one of the seven chambers.  That clerk prepares a memorandum about the case that includes an initial recommendation whether the Court should review the case; the memorandum is circulated to all seven chambers, where it is reviewed by the clerks and possibly the Justices there.

Only one Justice, Justice Alito, does not participate in the cert. pool. Instead, his law clerks review the cases on their own and make recommendations directly to him.

Based on these reviews, the Justices decide to add Lyon v. Animal House Zoo to the discuss list "“ a short list of cases they plan to talk about at their next Conference (the name for the private meetings of the Justices).  (If no Justice had asked to add Lyon to the discuss list, it would have been put on the "dead list", and cert. would automatically have been denied without the Justices having ever discussed the case or voted on it.)  The Justices vote to grant review in Lyon, and the Court announces this decision as part of an orders list, which is generally released on the Monday morning after the Justices' private conference.

Merits Stage

Once the Court has decided that it will hear the case, the parties are required to file a new set of briefs.  Unlike the cert. stage briefs, which focused on whether the Court should review the case, each party uses the briefs on the merits to explain why he or she should win the case.  Once certiorari is granted, the petitioner generally has forty-five days to file his opening brief, known as the petitioner's brief.  (This time frame is typical, but can vary in particularly time-sensitive cases; when the Court was trying to decide the dispute between presidential candidates George W. Bush and Al Gore, for example, it instructed the parties to file their merits briefs over the course of a single weekend.  Also, depending on the Court's schedule, the parties to a merits case may be able to agree on a schedule that provides them with more time that the rules specify.)  Mr. Lyon has a maximum of fifteen thousand words to make his argument, and he uses that space to explain to the Court why he thinks the Animal House Zoo violated his rights when it threw out the results of the exam.

Even though the Supreme Court will have access to the entire record as it reviews the case, Mr. Lyon and the zoo agree that it will be helpful for the Justices to have the promotional exam results readily available, so they decided to file a joint appendix including this material.  (If Lyon and the zoo had agreed that no joint appendix was needed, they could have filed a motion asking the Court for permission not to prepare one.)  Whoever loses the case will be required to pay for the printing of the joint appendix, so both Mr. Lyon and the zoo have an interest in keeping it as short as possible.  The joint appendix is filed at the same time as Mr. Lyon's merits brief.

A group not involved in Lyon v. Animal House Zoo, the United Coalition of Zoo Workers, learns about the case and decides that a Supreme Court ruling in Mr. Lyon's favor will represent a substantial victory for its own mission.  Therefore, the group files an amicus brief urging the Supreme Court to accept Mr. Lyon's arguments; furthermore, it brings up some points that Mr. Lyon didn't address in his brief, and that it thinks will be helpful in persuading the Justices to rule in his favor.  Because it is filing its brief in support of the petitioner, its amicus brief is due one week after Mr. Lyon's merits brief is filed; a group that wishes to file an amicus brief must normally ask both sides for permission to do so, but the Court will almost universally grant permission for a timely amicus brief even if one side or another refuses to consent to an amicus brief.

Thirty days after Mr. Lyon files his merits brief (absent an extension), the zoo's brief "“ known as the respondent's brief "“ is due.  It is subject to the same fifteen-thousand-word limit as Mr. Lyon's opening brief; it uses the space to argue that, when it threw out the test results, it was only trying to avoid discriminating against any of their employees.  It argues that the Second Circuit's interpretation of the case was correct, and it urges the Supreme Court to affirm (leave in place) that ruling.

The U.S. Government also learns about Lyon v. Animal House Zoo, and it worries that a Supreme Court ruling in Mr. Lyon's favor would restrict its own ability to promote its employees as it sees fit.  Therefore, the Government decides to file an amicus brief in support of the zoo.  The U.S. Solicitor General, who acts as the Government's lawyer in Supreme Court cases, files the amicus brief; her brief is due one week after the zoo's brief is filed.  The United States is one of a limited number of parties (along with States) that does not even have to ask for permission to file an amicus brief.

The Solicitor General also files a motion for divided argument, asking the Supreme Court to allot some time for her to speak as an amicus during the oral argument.

Once Mr. Lyon has filed his merits brief and the zoo has responded, he has an opportunity to file a reply brief, which is due approximately thirty days after the respondent's brief on the merits (but at least seven days before the case is argued).  He uses this brief to rebut the arguments made in the respondent's brief and the United States's amicus brief and to reiterate the points he made in his original merits brief.

Oral Argument

The Supreme Court normally hears oral arguments between October and April, scheduling them into two-week sittings during which the Court hears two (although sometimes one or three) arguments per day on Monday, Tuesday, and Wednesday.  Generally, the Court allots one hour of argument time for each case, with each party speaking for thirty minutes.

Although amici often ask the Court to grant divided argument "“ in other words, to let them use part of a party's allotted half-hour to make their own points "“ these requests are rarely granted for private groups acting as amici.  However, in Lyon v. Animal House Zoo the Court granted (as it often does) the Solicitor General's request for divided argument. Because the Solicitor General will be arguing for the United States in support of the respondent, she (or another lawyer from her office) will be using ten minutes of the half-hour allotted to the zoo.

Because Mr. Lyon is the petitioner, his attorney argues first.  Throughout his oral argument, the Justices have the opportunity to ask the attorney to clarify or elaborate on any points of his position.  Mr. Lyon's attorney speaks for twenty-five of the thirty minutes allotted to him, choosing to reserve the last five minutes for rebuttal.  As soon as he finishes speaking, the attorney for the zoo has twenty minutes to respond, during which she is also questioned by the Justices.  Following the zoo's attorney, an attorney from the office of the Solicitor General argues for ten minutes on behalf of the United States, and then Mr. Lyon's attorney uses his five remaining minutes to deliver a rebuttal.

Decision

Later that week, the Justices hold a private conference during which they vote on how to decide the case.  The senior justice in the majority (that is, either the Chief Justice or, if he is not in the majority, the justice who has been on the Court the longest) decides who will write the majority opinion; if there is a dissent "“ an opinion held by a minority of Justices that a different decision should have been reached "“ then the senior dissenting Justice decides who will write the lead dissent to the opinion.

The assigned Justices then draft opinions outlining their reasoning in reaching their decision.  The amount of time taken to write an opinion depends on several factors: how divided the Justices are, which Justice is writing the opinion, and the time of year.

The Court announces its decision in Lyon v. Animal House Zoo in open court.  Here, the Court hands down (issues) an opinion in which it reverses the Second Circuit's decision, explaining its reasons for ruling that the Second Circuit was wrong to decide the case in the zoo's favor and that it should have ruled in favor of Mr. Lyon instead.  (Alternatively, the Court could have affirmed the case, ruling that the Second Circuit was right and that the zoo should not be held liable; it could have vacated the Second Circuit's ruling, effectively canceling it; and it could have remanded the case, directing the Second Circuit to re-examine it based on theories, evidence, or reasoning it had not yet considered.)

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