Advisability of Filing a BIO
If you prevailed before the federal court of appeals or state court of last resort, your victory is most likely secure. During October Term 2014, the Supreme Court granted review in just 3.47 percent of “paid” cases (that is, cases where the petitioner can pay filing fees and printing costs). See Allison Orr Larsen & Neal Devins, The Amicus Machine, 102 Va. L. Rev. 1901, 1939 (2016). The grant rate for the roughly 6,000 in forma pauperis cases filed by indigent petitioners was closer to 1 percent.
With the Court granting certiorari in so few cases, it is fair to ask whether respondents should even file a BIO. As a practical matter, the Court never grants review in a case until the respondent has filed a response. Many counsel therefore routinely waive the right to file a response in hopes that the Court will resolve their case without them ever having to do anything more than file a waiver form—or perhaps (though this course is less courteous to the clerk’s office) without ever filing anything at all because the Court treats failure to file a responsive pleading as a waiver after the standard 30-day period for filing a response has elapsed.
Reflexive failure to file an opposition is a mistake, though. The BIO represents a prevailing party’s last chance to put its spin on a case before law clerks form their initial impressions of a case and write memoranda, and before any justice casts a vote. For that reason, if a case presents a colorable circuit split or otherwise may attract the serious attention of one or more justices, a respondent would be well advised to file a BIO to put its own spin on the case before impressions start to form. All but two of the justices participate in a “cert pool” in which one of the participating justices’ clerks writes a memorandum about each petition. The other two Justices’ clerks likewise produce memos about colorable petitions. A memo that is based on the petition alone could cause the clerks and justices to form an opinion about cert worthiness without the benefit of your views. At a minimum, counsel should consult experienced Supreme Court counsel or former clerks and seek their advice about the advisability of waiving a response. Don’t worry if you need more time to produce a response; the Court is quite generous in granting one, two, or (less often) three reasonable extensions (30 days or less).
The brief in opposition is the single most specialized brief in the federal court system. Unlike virtually every other brief, the object is not to persuade the Court that you’re right on the merits; you just have to persuade it that your case isn’t legally important and curb any nascent enthusiasm that the clerks or justices may be developing for the cert petition.
While you have 9,000 words to work with, you should keep the brief as short as possible—under 15 pages is generally optimal. It should be clear that you’re able to dispatch the petition’s most important contentions with the back of your hand. If you spend 30 pages responding, it may leave the impression that there is something there. But while the tone may be dismissive and the brief short, you should not stint on the care and thought put into a BIO. And, in particular, be careful to bring it to the Court’s attention if the petitioner misstates facts or law in a way that is material to the issues before the Court. Rule 15.2 specifies that counsel “have an obligation to the Court to point that out in the brief in opposition, and not later.” The Court has been quite strict about enforcing that rule, sometimes assuming facts or legal propositions to be true if the respondent has failed to correct them before it granted review.
Respondents are free to dispatch with many of the formal requirements of Supreme Court briefs unless they are dissatisfied with the presentation by the petitioner. Thus, they need not include questions presented; a recitation of the parties to the proceeding; citations to the decisions below; a jurisdictional statement setting out the dates of the judgment under review, any order respecting rehearing, and the statutory basis for invoking jurisdiction; relevant provisions of law; related cases; and even a statement of the case. Sup. Ct. R. 15.2, 15.3, 24.2. While the parties to the proceeding, citation of the decisions below, and the jurisdictional statement can be safely omitted if the petitioner has done its homework, it is worthwhile for respondents to prepare their own questions presented, reframed in a less loaded way.
A short introduction of one to three crisp paragraphs is welcome in any cert-stage document to frame the arguments and prepare the reader for what is to come. Err on the shorter side, given the overarching mission of downplaying the case’s significance.
Respondents should only in the rarest of circumstances forgo their own statement of facts. The statement should be scrupulously factual (with record citations for every significant statement) and should omit any argument. Overt efforts to smuggle argument into the statement of facts will only reduce your credibility, and make it less likely the reader will rely on your brief for an authoritative recitation of the facts when writing a memo to the reader’s justice or to the cert pool. But by selective inclusion and emphasis of facts, the statement can reinforce themes that will the basis for the argument against cert, such as that the case is fact-bound (or that the facts are disputed), that arguments were not preserved, that the case rests on state law, that the case is factually distinguishable from a purportedly conflicting case, and so forth. Every fact that you intend to draw upon in the argument section should be laid out and cited. The lawyers in the Office of the Solicitor General, which represents the United States before the Supreme Court, are masters of this art; reviewing a handful of their opps will give you a sense of how a purely factual recitation can nonetheless frame the case in the most advantageous way. A well-written statement of facts can, in five to seven pages, make the argument section almost superfluous.
The BIO’s argument section is aptly captioned “Reasons to Deny the Petition.” Many respondents lead their arguments by dispelling the argument that there is a circuit split. But one could do worse than following the road map set forth in the Solicitor General’s classic opp introduction: “The court of appeals correctly rejected petitioner’s contention, and its decision does not conflict with any decision of this Court or another court of appeals. Further review is not warranted.” In other words, one tried-and-tested method is to begin by explaining why the decision below was correct (which doubles as a legal backgrounder in the area), explain why that decision does not create or implicate a split of authority (and refute any argument that it conflicts with Supreme Court precedent), and then address vehicle problems and the issue’s importance.
You will have a receptive audience. The law clerks writing cert memos are typically risk averse, knowing that errors in their analysis could come to light if cert is granted in a case—for example, if vehicle problems emerge after the case is briefed on the merits. Thus, they usually will be eager to find reasons to recommend against taking a case. And the justices, if not predisposed against granting, are at least very willing to wait to find the right case. As one justice has repeatedly said, the Court can’t go wrong by denying cert because if an issue is important, another case raising it will come along. Because the justices are generally happy to wait until an issue arises in an ideal case, it generally does not take too much to talk them out of taking a case.
The Court was forced to dismiss as improvidently granted (“DIG,” in Court parlance) three cases in the fall of 2013 after it belatedly discovered vehicle problems in each. Such high-profile dismissals have made the justices acutely conscious of the importance of identifying vehicle problems. To help discover such problems before cert is granted, the Court in January 2014 began implementing a procedure of routinely reconsidering cases that it has tentatively decided to review to allow careful review for potential vehicle problems.
Although briefs in opposition ordinarily would not address vehicle problems first, I discuss the subject first because of their importance in writing an effective BIO. True “vehicle problems” are facts about a case that would prevent the Court from reaching the question posed by the petition, although the term is also sometimes used loosely to encompass facts that simply make the case less desirable from the Court’s perspective. True vehicle problems will cause the Court to pass on a case even when there is a circuit split and the issue is important and recurring. There is a broad variety of vehicle problems:
Untimeliness. Petitioners sometimes mistakenly calculate the period to file from the appeals court’s issuance of the mandate rather than the entry of judgment. The Supreme Court lacks jurisdiction to review untimely petitions in civil cases. See 28 U.S.C. § 2101(c); Sup. Ct. R. 13.2.
Preservation. Be sure to review all relevant briefing, hearings, and rulings in the courts below. Because litigants’ understanding of the issues changes over time, you will find that parties frequently have failed to timely or adequately raise issues. The Court ordinarily will not review an issue that was not pressed by the litigants or passed upon below. Sometimes the Court will decline to resolve issues pressed below if the court of appeals did not address them. Perhaps the petitioner framed the issues slightly differently; sometimes that will mean that the district court failed to make a factual record adequate to address the issues.
State-law issues. The Supreme Court has no authority to rule on issues of state law. If the petition arguably depends on an issue of state law, the Court will likely pass. Careful review of the authorities cited by the opinion below may indicate that the decision rests on matters of state law. Even if the court below decided a federal issue, the Supreme Court will not review the case if it appears from the record that the judgment is supported by an adequate and independent state-law ground. Indeed, this situation is sufficiently common that there is a routine abbreviation for it used in cert pool memos: “A&ISG.”
Interlocutory posture. The Court’s jurisdiction over state courts extends only to review of “[f]inal judgments,” 28 U.S.C. § 1257; it does not include authority to review their interlocutory decisions. The Court’s review of federal courts’ interlocutory decisions is addressed below.
Disputed predicate issues. The Court may pass on a case where the important legal question turns on another issue that is not the subject of a circuit split, or on an issue that rests on a disputed or unclear factual issue.
Ripeness/mootness/standing. The Court is very conscious of questions of justiciability. If there are colorable arguments that the petitioner lacks standing or that the case is (or may become) moot, the Court may decide not to take the case. Indeed, merely the fact that the case has an embedded justiciability question is often enough not to take the case.
General messiness. If the facts of your case are convoluted, unsettled, or simply messy, that may be enough to persuade the Court that the case is too fraught. If so, the argument (and, for that matter, the statement of facts) should include enough detail to make the reader viscerally appreciate that this case is not one to take.
In addition to issues that would prevent the Court from reaching the questions presented, there are facts about cases that at least raise prudential concerns about granting cert. The Court is sensitive to the risk of releasing “advisory opinions” and also generally tries to conserve its resources by only taking cases where its intervention is necessary and will affect the outcome. But while this type of vehicle problem is usually enough to persuade the Court to pass, sometimes it will choose to disregard these problems when the case is particularly interesting or otherwise important. For that reason, I sometimes joke that these types of “vehicle problems” are obstacles to cert until they aren’t.
Interlocutory posture. Even in cases arising from federal courts, the Supreme Court “generally await[s] final judgment in the lower courts before exercising [its] certiorari jurisdiction.” Virginia Military Inst. v. United States, 508 U.S. 946, 946 (1993) (opinion of Scalia, J., respecting denial of petition for writ of certiorari). It is commonly said that the interlocutory nature of the order “alone furnishe[s] sufficient ground for the denial of the application.” Hamilton- Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916). That is because the party may prevail on another ground, and the Supreme Court may never need to review the case. But the Court has regularly granted review of formally interlocutory decisions, particularly when the questions presented involve issues of jurisdiction or other “important and clear-cut issue[s] of law that [are] fundamental to the further conduct of the case.” Eugene Gressman et al., Supreme Court Practice 281–82 (9th ed. 2007).
No outcome-determinative effect / alternative grounds for affirmance. If the court below decided in your favor on two alternative grounds, the Court is unlikely to grant review if only one issue is arguably cert worthy. Similarly, the Court will commonly pass on a case when it appears that the petitioner could well lose on another ground even if he prevailed on the issue on which he has sought cert. But the Court has reviewed cases where it is at best uncertain that the petitioner would prevail even if the challenged legal rule were rejected. Thus, the Solicitor General has repeatedly argued that uncertainty about “the ultimate outcome” of a case “does not deny . . . a vehicle for the Court to consider important questions” and that “[t]he possibility that [respondent] might ultimately be able to [win on alternative grounds] . . . would not prevent the Court from addressing the questions presented in the petition.” Cert. Reply Brief at 10, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012) (Nos. 11-246, 11-247). (Tips for reply briefs could easily fill its own chapter, but it is especially effective to cite those briefs when the government is the party arguing that a possible alternative ground for affirmance is a reason not to take the case.)
Postjudgment legislation or regulation. The Court may choose to pass on a case if there is pending legislation or if an agency is considering regulatory changes that might moot the question or render it less important.
The Alleged “Split”
Most lawyers who file cert petitions know that the presence of a circuit split is the single biggest factor in obtaining Supreme Court review. Thus, virtually any cert petition that warrants a response will probably allege conflict. But alleged conflicts frequently disappear on closer examination. One decades-old study concluded that “about 60 percent [of petitions] set forth an alleged conflict” at that time. Gregory A. Caldeira & John R. Wright, The Discuss List: Agenda Building in the Supreme Court, 24 L. & Soc’y Rev. 807, 820 (1990) (Note: That figure is probably higher today given the growing understanding of the Court’s cert criteria.). But, of those, only “about 6 percent contained real conflict.” Id.
Some of the cases in which alleged “splits” are routinely found may be from courts that do not figure in the Court’s decision-making, which by rule looks to whether “a United States court of appeals” or a “state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or a United States court of appeals.” Sup. Ct. R. 10(b). Thus, decisions of district courts and intermediate state courts of appeals do not “count” toward the split. Similarly, it is well established that intra-circuit splits are to be resolved by the relevant court of appeals sitting en banc, not the Supreme Court. Unpublished decisions are frequently discounted in circuit splits, and decisions that are nonprecedential under the deciding court’s rules are ordinarily given little to no weight in evaluating a conflict.
Alleged splits fall apart for other reasons. Commonly, cases can be reconciled because differing outcomes can be explained by distinguishing facts rather than substantive differences in the legal rule. Even if courts adopted distinct rules or tests, it may be possible to demonstrate that different verbal formulations of rules do not result in different outcomes—at least under the circumstances presented by your case. District court rulings interpreting a circuit’s legal rules are sometimes useful in demonstrating that different-sounding rules do not result in disparate outcomes.
Even when the conflict is a square one, the Court may not be interested in reviewing the case—at least not yet. If the conflict has arisen only recently, or only a few courts have weighed in, the Supreme Court commonly will want to let the issue “percolate” further so that the justices have the benefit of more perspectives when they finally address the issue. As Justice Ginsburg has written, “[w]e have in many instances recognized that when frontier legal problems are presented, periods of ‘percolation’ in, and diverse opinions from, state and federal appellate courts may yield a better informed and more enduring final pronouncement by this Court.” Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995). An academic study has confirmed as a statistical matter that conflict “[e]arly in the process . . . actually creates an incentive for the Court not to grant cert immediately in order to facilitate more learning; it is only later in the process when conflict induces the Court to grant cert” and resolve the split. Tom S. Clark & Jonathan P. Kastelec, The Supreme Court and Percolation in the Lower Courts: An Optimal Stopping Model, 75 J. Pol. 150, 166 (2013). Lopsided splits with only a single court on one side are less likely to interest the Supreme Court, at least if an argument can be made that the outlier court of appeals might reconsider its position in light of the weight of contrary or intervening authority.
By contrast, a split that has persisted for years may be “stale.” The Court’s failure to review may be an indication that the issue is a narrow or unimportant one; the BIO might include a long list of cases in which the Court has denied review in earlier cases presenting the issue, suggesting that there is no reason for a different outcome here. In addition, it might be argued that intervening Supreme Court precedents have undercut cases on one side of the split, and those courts should be given the opportunity to revisit their precedents. Even after courts of appeals have reaffirmed precedent, unless the decisions specifically addressed intervening Supreme Court decisions that undercut its rationale, the federal government has argued with some success that it is unclear whether the circuit split persists.
Of course, there may be instances in which the circuit split isn’t really implicated—such as when it appears that the petitioner would lose under either rule. Sometimes, a lower-court judge may even suggest as much in the record.
The BIO is unlike virtually every other brief in the federal system because the merits—that is, whether your client is right on the law—are usually a secondary consideration. To be sure, the justices’ perception of the merits matters, as demonstrated by the fact that the Court reverses in roughly 66 percent to 75 percent of cases that it hears. And if the Court believes that the lower-court decision was plainly wrong, it is more likely to grant cert even if the split is shallow. But the Court is unlikely to pass on a case simply because it believes the lower-court decision was correct if the split is deep and unlikely to resolve itself and the issue is important.
Your discussion thus does not need to be a full-blown analysis. In the typical case, your job is to produce a brief argument demonstrating that the lower court’s decision was sensible and consistent with any relevant Supreme Court precedents. If the lower-court opinion is difficult to defend on its own terms, you should try to craft an alternative argument to defend the judgment, hewing as closely as possible to the district court’s actual rationale.
Where there is no split but the case is particularly important for other reasons (for example, death penalty cases, sensitive prosecutions implicating politics, cases raising separation of powers issues, cases in which a statute has been invalidated, and the like), the merits play an outsize role. The Court may choose to grant review unless the justices are comfortable that the decision below was a correct one. In such circumstances, a full-throated argument in support of the merits may be in order. For example, when President George W. Bush’s recess appointment of two court of appeals judges was challenged, the federal government filed substantial briefs that defended the merits of the appointments at length and even attached tables listing every judge who had been recess appointed back to the founding.
It is frequently unnecessary to have a separate section of a BIO discussing the case’s importance—or, more to the point, its lack of importance. You can get that point across by emphasizing the unusual facts of the case or the narrowness of the district court’s decision. Any facts suggesting that the issue is a narrow one or arises only infrequently can be helpful—for example, by simply noting the low number of reported decisions on the subject. A number of government agencies may have statistical information that could be helpful. And any indication that the governing law or relevant programs might change may be effective in showing that the issue arises in only a limited and declining number of cases.
The brief in opposition is highly specialized and thus unfamiliar to many practitioners, but, with a little practice, this unusual brief form can be mastered so that the arrival of a new cert petition represents only a temporary delay before you can enjoy the fruits of your victory in the court of appeals.
John P. Elwood is a partner at Arnold & Porter Kaye Scholer LLP in Washington, D.C.