December 19, 2019 Articles

Curb Your Enthusiasm: Opposing Certiorari in the Supreme Court

Tips for maximizing the odds that no four justices will deem your case worthy of review.

By John P. Elwood

The certiorari petition is unquestionably the star of the Supreme Court’s reticulated procedures for deciding which cases to review—the star of “deciding to decide.” Of all the cert-stage documents, it is the petition that gets the most attention, the petition that drives the press coverage, the petition that largely determines what issues the parties must address. But for those who are really familiar with the process, it is the respondent’s brief in opposition—casually called the “BIO” or, by Department of Justice alumni, the “opp”—that is the real hero.

The BIO is the filing that determines the timing of the cert process: The petition, the BIO, and any reply brief will be distributed on the first scheduled distribution date (Wednesday and Thursday of each week, depending on whether the case is “paid” or “in forma pauperis,” and shifting to Tuesday and Wednesday late in the Term) that is at least 14 days after the BIO is filed—a waivable delay to allow the petitioner to prepare a reply brief. S. Ct. R. 15.5. The end result is that (unless the case is distributed over the summer when the Court is in recess) the case will be considered at a conference roughly one month after the BIO is filed; the precise schedule can be found on the Court’s website under the “Filing & Rules” tab.

The BIO not only controls timing; most of the time, it predicts the outcome of the cert process. As a group, briefs in opposition are among the most successful substantive pleadings that a litigant can file, probably exceeded only by the success rate for unopposed motions. 

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