A Layperson’s Observations of the “IFP” vs “Paid” SCOTUS Docket

Posted: September 13, 2012 in law
Tags: ,

US Supreme Court
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 Supreme Court of the United States will be in session again as of October 1, 2012, the first Monday in October. The Marshall of the Court (Court crier) will make the formal announcement by saying the interjection “Oyez” (/ˈoʊjeɪ/) three times in succession. To hear a real example of the announcement, “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.,” go here.

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.

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