Empirical SCOTUS: To extend or not to extend

From time to time an individual will pose a issue about Supreme Court docket practice to me that promotions with an situation I haven’t examined. A short while ago I had one particular these kinds of interaction with John Elwood of Vinson & Elkins. John questioned if I had appeared at apps for extensions of time to file petitions for writs of certiorari. Because I hadn’t appeared at this situation in any element before, I made the decision to bring a quantitative comprehension of the practice to this write-up.

Placing the material jointly to file a petition for a writ of certiorari to the Supreme Court docket is no tiny endeavor. Compounding the time concerned, get-togethers frequently bring on professional counsel to choose about conditions pending possible Supreme Court docket assessment. With submitting specifications building distinct parameters for when cert petitions will have to be filed, counsel may locate them selves under the gun to file in a well timed manner. To circumvent these specifications, counsel may ask for specific time extensions to file. This write-up normally takes a glimpse at various features of these requests, specifically: who files them, how the justices respond and what these apps for time extensions comprise.

The Procedures of the Court docket build the time-distinct submitting requisites. Rule 13 is made up of the first requirement that petitions will have to be filed “within 90 days following entry of the judgment.” Rule 13.5 then provides, “For great result in, a Justice may increase the time to file a petition for a writ of certiorari for a period not exceeding 60 days.” The Supreme Court docket involves attorneys publishing apps for extensions to establish the “basis for jurisdiction in this Court docket, discover the judgment sought to be reviewed, include a duplicate of the view and any order respecting rehearing, and established out distinct reasons why an extension of time is justified.” Rule 30, entitled “Computation and Extension of Time,” is made up of added data. Especially, it states that:

An software to increase the time to file a petition for a writ of certiorari … shall be built to an unique Justice and introduced and served on all other get-togethers as provided by Rule 22[, which requires the application to be “addressed to the Justice allotted to the Circuit from which the case arises”]. When denied, these kinds of an software may not be renewed.

These filings are not at all strange. Seeking at one particular randomly picked swath of time between December 4-12, 2017, 42 apps for extensions were filed prior to cert petitions. Despite the fact that the maximum quantity of time one particular can ask for is 60 days, not all petitioners ask for the entire quantity of time. Below is an illustration of an software filed by professional appellate attorney Shay Dvoretzky of Jones Day. The software for a month’s extension was granted but amended to one particular day a lot less than the time asked for.

For the facts in the write-up, I began with a random sample of 200 apps from the 2015 by the 2017 Supreme Court docket terms. 1st, I appeared at the quantity of time asked for in the apps. The apps are sorted into the closest category if the asked for time is in between two of them.

Click on graph to enlarge.

Notice that the greater part of the requests are for the maximum allotted time. A significant minority of apps questioned for a lot less than the maximum quantity of time, though. Why? In idea an attorney could craft a “good cause” argument for a extra restricted extension.

Despite the fact that the justices are responsible for apps based on their allotted circuits, this does not essentially guide to an even division of labor.

Click on graph to enlarge.

Justice Anthony Kennedy is assigned to the U.S. Court docket of Appeals for the 9th Circuit and is thus responsible for the premier and most populated geographic area. He received the most apps, adopted by Main Justice John Roberts, who is responsible for the U.S. Courts of Appeals for the 4th, District of Columbia and Federal Circuits, and Justice Clarence Thomas, who is responsible for the U.S. Court docket of Appeals for the 11th Circuit.

Now that we have a sense of the terrain for these apps, we can choose a glimpse at the justices’ responses. The justices responded to various apps by shifting the deadline to a couple days before or following the asked for date. This kind of response most probable relates to the Supreme Court’s logistical considerations and not to the merits of the apps.

Of the 200 apps, 35 (17.5 p.c) were denied or resulted in extensions that were at minimum a week down below the asked for time. Various justices disproportionately denied apps. In simple fact, only three justices denied apps in this established in their entirety. Of all those three justices, Kennedy denied 12, Justice Antonin Scalia 6, and Justice Ruth Bader Ginsburg one particular.

Much more justices acquired into the motion of granting apps, but for a lot less time than asked for. The breakdown of these is as follows.

Click on graph to enlarge.

Kennedy also led in this category, along with Justice Samuel Alito. Justice Neil Gorsuch was not significantly driving. Most of these amended extensions were given for one particular month as a substitute of the two months asked for. As both of those facts points recommend, Kennedy is the most probable justice to deny or amend these kinds of extension apps, so all those submitting in the 9th Circuit need to choose care to offer great reasons for any asked for extensions.

I dug deeper into a individual sample of 50 apps to have an understanding of their material. 1st, I appeared at who files these apps and was fulfilled with some surprises. The subsequent figure tracks the business or group connected with each individual of the 50 apps in which this was built clear in the software.

Click on graph to enlarge.

Professional-se apps (filed on an applicant’s very own behalf) were by significantly the premier group. Pursuing these and other tiny regulation workplaces, firms with professional attorneys also put highly in this figure. Various of the attorneys of document on the apps are very well recognized in Supreme Court docket circles. These include Mayer Brown’s Andrew Pincus, Stanford Supreme Court docket Litigation Clinic’s Jeffrey Fisher and Kirkland & Ellis’ Paul Clement. Other notable names on this listing of 50 random apps include University of Texas’ Steve Vladeck, Jones Day’s Gregory Castanias, Latham & Watkins’ Gregory Garre and MacArthur Justice Center’s Amir Ali.

Of these 50 apps, four were fulfilled with grants that provided a lot less than the time asked for. (1 applicant received an added week, probable connected to scheduling encompassing the holiday period.) Only one particular of these amended grants was from a pro-se filer, while the other three were from attorneys backed by significant-title firms or groups. This at a least indicates that an attorney’s area of practice is not the only variable the justices analyze when determining on these apps.

But what do these apps comprise? I ran subject modeling software package throughout the sections of these 50 apps relating to the rationale for extensions. This led to 5 sets of important words that assistance make clear the sorts of requests built in the apps. The important words are as follows:

  • Petition certiorari argument writ oral reply date
  • Time difficulties latest elaborate planning retained attorneys
  • Court docket added document circuit petitioner states supreme assessment appellate filed
  • Counsel situation owing extension get ready undersigned day a short while ago holidays
  • Which include file appeals regulation applicant state pending complete

These important words assistance clarify that popular justifications for the extension requests include other obligations before the petition’s original deadline date, holidays or break durations, situation complexity and differently retained counsel at the Supreme Court docket degree. This sort of explanations by no implies secure granted apps in just about every occasion, but they do give a sense of the reasons driving these kinds of requests.

Despite the fact that this is only a tiny part of Supreme Court docket practice, effective apps may let for improved petitions, while denied apps may final result in cert petitions that are incomplete or a lot less polished, minimizing the chance that all those petitions will be granted.

This write-up was initially released at Empirical SCOTUS.

Posted in Empirical SCOTUS, Featured

Proposed Quotation:
Adam Feldman,
Empirical SCOTUS: To increase or not to increase,
SCOTUSblog (Apr. 25, 2018, 4:28 PM),
http://www.scotusblog.com/2018/04/empirical-scotus-to-increase-or-not-to-increase/

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