I still receive calls from attorneys regarding the timing and procedure for filing a reply brief on the petition stage. The Supreme Court’s Rules on this subject are somewhat vague on the timing and provide little guidance on the procedure for printing and filing reply briefs. So I am re-posting this article I first posted at Cockle Printing to clear up any confusion on the process.
Most attorneys’ inclination is to file a reply brief before the clerk distributes the petition and brief in opposition to the Court for consideration. According to experts, this is a wise practice given that the Justice’s clerks begin writing cert memos on the petition shortly after distribution. Without a reply brief in hand, there is the risk that a clerk will view the respondent’s contentions without rebuttal and craft a cert memo accordingly. See Eugene Gressman, et al., Supreme Court Practice at 509 (9th ed.) (“To do any good, the [reply] brief must be submitted for the Court to read it before it acts on the petition. This means that, to be effective, the reply brief should be available to the Justices (or their clerks) when they read the brief in opposition shortly after the case is circulated.”); Timothy Bishop, et al., Tips on Petitioning for and Opposing Certiorari in the U.S. Supreme Court at 4 (“…the petitioner should aim to file a reply within ten days after the brief in opposition is filed so that the respondent’s arguments do not go (even temporarily) unchallenged.”).
Under Supreme Court Rule 15.5, the Clerk will distribute the petition for writ of certiorari and the brief in opposition for the Court’s consideration no less than 10 days after the brief in opposition is filed. The 10-day deferral of distribution period is not, however, the actual filing due date. Since the Court only distributes once a week, the petitioner will often have a few days beyond the 10-day deferral period. For example, if a brief in opposition was filed on May 4, 2011, and the 10-day period ends on May 14, 2011, the next available distribution date for paid petitions is May 17, 2011, and therefore, that is the actual filing due date.
You can determine the distribution date for your petition from the Court’s case distribution schedule, which can be viewed here.
The process for printing and filing a reply brief at Cockle is straightforward (I am unaware of the process at other brief printers but I would bet it is similar). Once the distribution date is determined, it is Cockle practice to print and mail the reply brief the day before distribution. Cockle confirms, on the day of distribution, that the briefs were delivered to the Court. They then email an electronic PDF version of the reply brief to Deputy Clerk Chris Vasil. Since the paper briefs are sent off-site for anthrax screening, Mr. Vasil distributes the PDF version to the Court. The PDF is later replaced with the paper briefs once screening is complete.