photo: laura padgett/flickr

Today in the news is this article, titled Justice Ruth Bader Ginsburg Says Supreme Court To Address DOMA This Session. The subject of this post is an update of a pertinent case currently on the SCOTUS docket.

Hollingsworth (petitioner) v Perry (respondent) is a pending Petition for Writ of Certiorari currently on the docket before the Supreme Court of the United States. Perry prevailed by a ruling in the lower court and Hollingsworth now challenges that decision (Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)). The issue is whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

Firedoglake covered the Prop 8 trial in depth, and there has been extensive media and blog attention to the case throughout its litigation history in the courts. To reiterate, Prop 8 (ballot title: Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment) passed in November, 2008. Prop 8 was then challenged on constitutional grounds and overturned in United States District Court with an opinion by Judge Vaughn Walker. Finally, on February 7, 2012, in a 2–1 decision, the US Court of Appeals for the Ninth Circuit affirmed Walker’s decision declaring the Proposition 8 ban on same-sex marriage to be unconstitutional. That opinion, written by Judge Stephen Reinhardt, is what the petitioner is challenging in the Petition for Certiorari (“cert” or “Petition for “cert”).

As you can see on SCOTUSblog.com, in addition to the initial petition, the briefs in opposition (here and here) and the link to the Ninth Circuit opinion, there are 13 Amicus briefs. There are also reply briefs to briefs in opposition.

The petition, the responses in opposition, the replies and the Amicus briefs have been filed in the Supreme Court. Clerks have reviewed them and distributed the incoming documents to chambers for the September 24, 2012 conference. Prior to the conference, Justices read and review incoming (distributed) material, at the rate of about 140 petitions each week, according to this certiorari practice article. During the conference, where only Justices are allowed to be in the room, they will make decisions about what to do with the petitions that they have reviewed. They can grant cert (agree to review the case), deny cert (the opinion ‘below’ stands unaffected), ‘relist and hold,’ where a case is held over for decision at a later date, or invite the view of the US Solicitor General (a CVSG or a Call for the View of the Solicitor General). On October 1, 2012, the decisions will be released in an “Orders List” on the Supreme Court site.

Bottom line in Hollingsworth v Perry: The Petitioner (Hollingsworth) is arguing for a grant of cert and an opinion from the Supreme Court that will set aside the opinion issued by the Ninth Circuit, and the respondent (Perry) is arguing for a denial of cert so that the opinion of the Ninth Circuit remains as the binding authority.

All of the petitions and Amicus (Latin: “friend of the Court”) briefs follow a standard format that contains the following: 1.title page with listed parties; 2. Question Presented; 3. Table of Contents; 4. Table of Authorities; 5. Argument; 6. Conclusion. There is a page limit of 30 pages.

Amicus briefs can only be submitted with specific permission from the court. You can look here to see how it is worded when permission is requested and granted. These briefs are not submitted by parties in the case. They are submitted by parties with interest in the case and outcome. Amicus briefs have been historically associated with various advocacy groups. It is worth noting that the ‘question presented’ in each brief is the lawyer’s opportunity to tell the Court what the issue is; the Court wants to know whether to grant or deny cert, and this is the lawyer’s shot at that. The question presented is persuasively phrased, and in some cases, the persuasion is evident in the Table of Contents and the Table of Authorities as well.

Here are examples, word-for-word, from petitions in this case. These are only snippets:
Read the rest of this entry →

photo: dbking/flickr

There are currently 2024 active cases on the SCOTUS docket. That is to say, 2024 Petitions for Certiorari have been distributed for the September 24, 2012 conference. Some of the petitions have gained public attention and are listed on a SCOTUS blog dot com site, SCOTUSblog.com. Every single petition on the “petitions we are watching” list is from the paid side of the current SCOTUS docket. There are no IFP (in forma pauperis) petitions listed. The site is sponsored by Bloomberg Law and is not affiliated with SCOTUS. It is a dot-com and not a dot-gov site. It is interesting to note that a case will not qualify for “petitions we are watching” unless a response has been filed to the Petition for Certiorari, usually in the form of a Brief in Opposition (BIO) opposing cert (opposing the court’s grant of review). Additional responses, usually in the form of Amicus briefs (briefs filed with the Court’s permission arguing one side or the other) seem to bolster the chances of a case making this exclusive list. Here is an example, having to do with Prop 8 DOMA, in the pending Petition for Certiorari regarding Hollingsworth v Perry.

The indigent docket (IFP docket) is indicated in the numbering system. Petitions are assigned a number that begins with the year that the final appeal was exhausted in the lower courts, for example 11-XXXX or 12-XXXX. After the year is a dash followed by another number. If that number is greater than 5000, it indicates an IFP (indigent) petition. For random example, an IFP petition might be assigned the number 12-5100.

That the IFP docket constitutes such a large portion of the overall docket (“roughly half”) and yet gains little attention in pre-session publicity and in empirical post-session study alike is something that should be the focus of future Law Review writings. Granted, empirical analysis of the IFP docket is complicated by the lack of available information. Questions posed in IFP cert petitions, for example, are unavailable, as are any briefs that may have been filed.

In addition to IFP petitions having no chance of gaining public attention, there is much strategy involved when it comes to attempts to get the Court to ignore IFP petitions. This article states openly:

Your brief in opposition should be low key, befitting the trivial issue the petitioner has tried to foist on the Court. A tone of bemusement, of a patient adult dealing with a confused child, is about right. You will rarely need the full 30 pages (although a long brief showing in nauseating detail why a petition is uncertworthy may sometimes be thought effective to deaden any spark of interest in the case). “A brief in opposition should be briefly stated and in plain terms” (Rule 15.2), and focused on the precise problem at hand. This is not a place for an extended disquisition on the governing legal principles. As E. Barrett Prettyman, Jr., has warned, if the justices and their clerks finish reading your brief “more impressed with the importance of the case than they were when they finished the petition,” you have made a mistake. Prettyman, Opposing Certiorari in the United States Supreme Court, 61 Va. L. Rev. 197, 198 (1975).

Take pains to deter any would-be amici. You don’t need their help right now. Their participation at this stage would only serve to suggest that the petition raises an issue with broad impact, and would be self-defeating. Amicus support for a respondent — the opponent of certiorari — has been shown actually to increase the likelihood of a grant. Caldeira & Wright, supra, at 824, 828.

Source.

While I am certain that the highest Court in the nation is very aware of the various and sundry jockeying-for-position strategies and takes these strategies with a grain of salt, it would be interesting to see some recent studies on just what the strategies are. To me, the suggestion in the blockquote above constitutes bad advice. It is suggesting strategic ways to manipulate the Court’s attention away from legitimate issues and it is dishonest and transparent. I would think that the Court is not interested in games, and that it is unlikely to overlook an important legal issue because some lawyer intoned “bemusement, of a patient adult dealing with a confused child.”

End note and update on the upcoming session, unrelated to the topic of the post but interesting anyway:

The Court will begin to hear oral arguments in cases that have been “granted and noted.” Granted and noted cases for this October and for Octobers past, as well as information about briefs and transcripts is available here.