Preface... Checklists for Processing Cases Through the Court Including Document Length Limits and Cover Colors... xxxvii

Transcription

1 Detailed Contents Preface... Checklists for Processing Cases Through the Court Including Document Length Limits and Cover Colors... xxxvii 1 Introduction to the Supreme Court The Creation of one supreme Court Implementation of the one supreme Court... 4 (a) Number of Justices... 4 (b) Tenure and Compensation... 4 (c) Compensation of the Justices... 5 (d) Quorum... 5 (e) Absence of a Quorum... 7 (f) The First Monday in October Term... 7 (g) Holding Terms at the seat of government... 9 (h) Congressional Funding of the Court Court Sessions and Conferences During Its Continuous Term Opinions and Orders The Supreme Court Building and Grounds The Courtroom and the Conference Room The Supreme Court Library Clerk s Office Marshal s Office Reporter of Decisions and Publication of Opinions Public Information Office Counselor to the Chief Justice The Legal Office Office of the Curator The Supreme Court Historical Society Supreme Court Law Clerks (a) History of Supreme Court Law Clerks xv vii

2 xvi Supreme Court Practice, 10th Edition (b) Law Clerk Selection Process (c) Certiorari Work of Law Clerks (d) Work of Law Clerks on Opinions (e) Ethical Obligations of Law Clerks The Supreme Court Website and Other Sources of Information About Cases Before the Court (a) The Supreme Court Website (b) Where to Find Briefs Filed in the Supreme Court (c) Availability of Petitions and Briefs in the Supreme Court s Files (d) Unofficial Reprints of Opinions and Orders Dockets The Court s Procedural Framework The Court s Workload and Its Effect on Practice (a) The Growth of the Court s Workload (b) The Decline of the Argument Calendar (c) The Decline in Supreme Court Decisions (d) The Effect of the Workload on the Practitioner The Computerization of Booklet-Format Documents Timely Filing of Documents Jurisdiction to Review Decisions of Federal Courts I. Introduction Constitutional and Statutory Bases of Certiorari Jurisdiction II. Federal Courts of Appeals Plenary Nature of Certiorari Jurisdiction Over Federal Courts of Appeals Certiorari Jurisdiction Over Nonfinal Judgments of Federal Courts of Appeals Certiorari Jurisdiction Before Rendition of Judgment Below Invocation of Certiorari Jurisdiction by Any Party to Case Below Jurisdiction by Certification From Courts of Appeals III. District Courts Appeals From District Courts Appeal Jurisdiction to Review Decisions in Civil Antitrust Cases Brought by the Government IV. Three-Judge District Courts Appeal Jurisdiction Over Three-Judge District Courts Under Appealable Judgments Under Existing Three-Judge Court Statutes (a) Specific Statutory Cases (b) Reapportionment Cases (1) Injunctive Relief

3 Detailed Contents xvii (2) Scope of the Statute (c) The Civil Rights Act of (d) The Voting Rights Act of 1965 and Related Statutes (1) 42 U.S.C. 1971(g) (2) 42 U.S.C. 1973b and 1973c (3) Other Three-Judge Court Proceedings (4) Direct Appeals From Three-Judge Courts (e) The Presidential Election Campaign Fund Act Procedures and Considerations Applicable to All Appeals From Three-Judge District Courts V. Other Federal Courts Jurisdiction Over the United States Court of Appeals for the Federal Circuit Jurisdiction Over the District of Columbia Court of Appeals Jurisdiction Over the United States Court of Appeals for the Armed Forces Jurisdiction Over Other Specialized Federal Tribunals (a) The Temporary Emergency Court of Appeals (b) The Regional Rail Reorganization Act Special Court (c) The Foreign Intelligence Surveillance Act Courts Jurisdiction to Review Decisions of State Courts I. Introduction Jurisdiction Over State Courts Historic and Present Day Scope (a) The Final Judgment Requirement (b) The Rooker-Feldman Exclusivity Doctrine (c) No Supervisory Power Over State Courts (d) The Binding Effect of State Laws in the Exercise of 1257(a) Jurisdiction (1) Loss of Supreme Court Jurisdiction (2) Far Beyond Fair Reading of the State Statute (3) Misconstruction of State Property Law (4) Distortion of State Election Laws (e) Deference to Lower Federal Court Interpretation of State Law (f) The All-Certiorari Jurisdiction Over State Courts Jurisdiction Over State Courts The Current Statutes Certiorari Jurisdiction Over State Courts In General II. Requirements for Finality Sources for Satisfying the Finality Requirement

4 xviii Supreme Court Practice, 10th Edition 3.5 Literal and Pragmatic Concepts of Finality Finality With Respect to Separable or Collateral Matters Finality Where Further Proceedings Are Contemplated Illustrative Applications of Finality in Civil Cases Illustrative Applications of Finality in Criminal Cases Finality as Affected by Petitions for Rehearing III. Requirement of Decision by Highest State Court In General State Trial Courts Intermediate State Appellate Courts State Courts of Last Resort State Administrative Bodies IV. Need for Properly Raising a Substantial Federal Question In General Framing the Federal Question Where and When a Federal Question Should Be Raised (a) In Trial Court (b) In State Appellate Court (c) On Rehearing (d) Presenting Issue in Certiorari Papers Effect of State Court s Determination of Federal Question Certificate From State Court That Federal Question Was Raised and Decided Limitation of Review to Properly Raised or Decided Federal Questions Noticing Plain Errors V. Lack of Jurisdiction to Review Judgments Based on Independent and Adequate State Grounds In General Sources for Ascertaining Grounds of Decision Independence of State Ground When Federal Ground Also Present The Michigan v. Long Presumption The Footnote 6 Exception to the Michigan v. Long Presumption Adequacy of State Ground Disposition and Enforcement in Cases Coming From State Courts Nonreviewability of State Court Findings of Fact The Rule and Its Exceptions Factors Motivating the Exercise of the Court s Certiorari Appellate Jurisdiction I. Certiorari Jurisdiction Historical Background of the Certiorari Jurisdiction

5 Detailed Contents xix 4.2 Guidelines for Exercise of Certiorari Jurisdiction Conflict Between Decisions as Basis for Granting Certiorari In General Conflict Between Decisions of Courts of Appeals (a) Important and Recurring Nature of Conflict (b) Well-Developed Conflict Among Circuits (c) Live Conflict (d) Conflict Based on Discredited Authority (e) Alternative Ground for Decision (f) Conflict Irrelevant to Ultimate Outcome of Case (g) Conflict Not Fairly Presented (h) Interlocutory Decision Conflict Between Decisions of Court of Appeals and of Supreme Court Conflict Between Decisions of Same Court of Appeals Conflict Between Decisions of Courts of Appeals and of Court of Appeals for the Federal Circuit or Court of Appeals for the Armed Forces Conflict Between Decisions of Courts of Appeals and District Courts Conflict Between Decisions of Court of Appeals and of Highest State Court as to Federal Matters Conflict Between Decisions of Court of Appeals and of Highest State Court on General and Nonfederal Matters Importance of Issues Involved Important Constitutional Issues Important Federal Statutory Issues Important Factual Issues The Usual Rule and Its Exceptions Important Federal Jurisdictional and Procedural Issues Exercise of the Court s Supervisory Power Important Similar Issues Already Pending Before the Supreme Court Erroneousness of Decision Below Interlocutory Nature of Judgment Below as Affecting Grant of Certiorari Effect of Interlocutory Appeals Act (28 U.S.C. 1292(b)) and Federal Rule of Civil Procedure 23(f) Grant of Certiorari Before Judgment by Courts of Appeals Considerations Affecting Grant of Certiorari in Cases Coming From the Court of Appeals for the Federal Circuit Considerations Affecting Grant of Certiorari in Cases Coming From the District of Columbia

6 xx Supreme Court Practice, 10th Edition 4.23 Considerations Affecting Grant of Certiorari in Cases Coming From the Court of Appeals for the Armed Forces Considerations Affecting Grant of Certiorari in Cases Originating in Puerto Rico Courts Considerations Affecting Grant of Certiorari in Cases Coming From State Courts II. Appellate Jurisdiction The Prior Practice of Disposing of Most Appeals Without Oral Argument Standards Applied in Determining Whether Appeals Should Be Heard (a) Factors Relating to the Merits (b) Factors Not Relating to the Merits Precedential Effect of Summary Dispositions in the Supreme Court Precedential Effect of Supreme Court Summary Dispositions in Lower Courts The Manner in Which the Court Determines to Take Jurisdiction I. Certiorari Cases Procedures for Considering and Disposing of Petitions for Certiorari Historical Background Procedures for Considering and Disposing of Petitions for Certiorari Modern Procedures Consideration of Petitions for Certiorari at Conference Granting Certiorari on Four Votes The Practice of Not Stating Reasons for Denying Certiorari Dissenting Opinions From the Denial of Certiorari Significance of the Denial of Certiorari The Court s Disposition of Certiorari Petitions In General Deferring Consideration of Petition Limited Grant of Certiorari Specification of Additional Questions at Time of Grant of Certiorari or on Reargument GVRs and Other Summary Dispositions (a) Summary Disposition Without Opinion (b) Summary Reconsideration Orders (GVRs) (c) Summary Disposition on the Merits by Per Curiam Opinion Summary Action in Moot or Abated Cases Vacating Denial of Certiorari in Absence of Petition for Rehearing

7 Detailed Contents xxi 5.15 Dismissal of Writ of Certiorari as Improvidently Granted II. Appeals Consideration Given Appeals by Court and Individual Justices Summary Action Before Argument In General Summary Affirmance or Dismissal on the Merits Before Argument Summary Reversal on the Merits Before Argument Summary Dismissal Before or After Argument for Miscellaneous Reasons Distinction Between Noting Probable Jurisdiction and Postponing Jurisdiction to the Merits Procedure in Connection With Petitions for Certiorari I. Time Limitations Time Limitations Governing Petitioning for Certiorari (a) Introduction to Time Limitations Applicable to Petitions, Cross-Petitions, and Applications for an Extension of Time to File a Petition (1) General Time Limits (2) Events Triggering the 90-Day Period for Petitioning (3) Calculating the 90-Day Period for Filing a Petition for Certiorari (4) Extension of the Time to File (5) Methods for Timely Filing (6) Time Limits for Filing a Cross-Petition for Certiorari (b) Special Statutes and Writs Governing the Time for Filing a Certiorari Petition (c) What Constitutes Filing the Petition (1) Clerk s Actual Receipt of Petition During the Filing Period (2) Mailing of Petition Postmarked Within the Filing Period (3) Forwarding Petition by Third-Party Commercial Carrier (4) Proof of Filing Date (5) Filing a Pro Se Petition (6) Physical Delivery to the Guard (7) The Court s Screening of Mail (8) Electronic Submission of Certiorari-Stage Briefs (d) Nonwaivability of Time Limits in Civil Cases (e) Waivability of Time Limits in Criminal Cases (f) Filing Under Seal

8 xxii Supreme Court Practice, 10th Edition 6.2 Calculating Filing Time From Entry of Judgment Below Time Calculation When Rehearing Sought Below Time Calculation When Judgment Below Is Changed II. Extensions of Time for Filing Petition for Certiorari Obtaining Extensions of Time When to File for Extension of Time Presenting Good Cause for Extension Effect of 10-Day Rule (a) Factors to Be Considered in Determining Good Cause (b) Factors to Be Considered in Determining Most Extraordinary Circumstances (c) Amount of Additional Time Requested (d) Effect of Requested Extension Upon Litigation (e) Nature of the Case and the Likelihood That Certiorari Will Be Granted (f) Compliance With 10-Day Rule Form and Content of Application for Extension of Time III. Docketing and Fees Docketing the Case Payment of Filing Fees and Costs Statutory Waivers of Filing Fees and Costs (a) Veteran s Cases (b) Seamen s Cases (c) Military Justice Act Cases IV. The Record Record Below Not to Be Filed at Time of Filing Petition for Certiorari (a) Only the Clerk May Request Transmittal of the Record (b) History of the Court s Use of the Certified Record at the Petition Stage (c) Lack of the Certified Record Does Not Hamper Court s Review V. The Petition Introduction In General Certiorari Documents Number, Color, and Length (a) Number of Copies (b) Color of Covers (c) Length of Documents (d) Application for Leave to Submit a Longer Petition VI. The Petition Identifying Counsel and Parties Naming Counsel of Record on Petition What Parties May Petition for Certiorari (a) Generally Only a Party Below May Petition

9 Detailed Contents xxiii (b) Successful Party Below May Not Petition (c) Intervention in the Supreme Court (d) Intervention by the United States; 28 U.S.C. 2403(a) VII. The Petition Preparing the Cover Content of Cover Naming Parties in Caption of Petition VIII. The Petition Corporate Disclosure and List of Parties Making Corporate Disclosures Procedure for Omitting Parties IX. The Petition To Which Court Is the Writ Directed? Court to Which Writ Is to Be Directed X. The Petition Procedure When There Are Multiple Cases Whether to File One or More Petitions in Consolidated or Related Cases XI. The Petition Producing the Document for Filing Methods of Printing and Reproduction (a) Document Formats for Paid and IFP Petitions (b) Booklet-Format Petitions (1) Standard Typesetting Process (2) Volume of Material (3) Paper, Margins, Text Field, Binding (4) Exceptional Allowance of Nonconforming Filings (5) Preparation of the Petition Appendix (6) Clerk s Rejection of Nonconforming Papers (7) Opportunity to File Corrected Papers XII. The Petition Introduction to Structure and Content Structure of Petition (a) Preliminary Items (b) Text of Petition (c) Appendices XIII. The Petition The Questions Presented Content of Questions Presented (a) Placement of the Questions Presented (b) The Short and Without Unnecessary Detail Standard (c) Form of the Question (d) Introductory Paragraph (e) The Number of Questions to Ask (f) Avoiding Argumentative or Repetitious Questions (g) Subsidiary Questions That Are Fairly Included (h) The Court s Power to Rephrase or Add to the Questions Presented (i) Questions to Be Avoided Need for Presenting Questions Below and in Petition

10 xxiv Supreme Court Practice, 10th Edition (a) The Court Considers Only Questions Presented in the Petition and Questions Fairly Included Therein (b) The Court Does Not Decide Questions Neither Raised Nor Decided Below (c) Respondent May Defend Its Judgment on Any Ground Preserved Below (d) Court s Consideration of Amicus Arguments (e) Limitations Are Prudential and May Be Outweighed by Special Considerations (f) Plain Error Exception (g) Court s Power to Consider Jurisdictional Issues (h) Court s Broad Discretion in Applying the General Rules Adding to or Amending Questions Presented XIV. The Petition Jurisdiction, Statement of Case, and Argument Sections Content of Jurisdiction Section Discussion of Other Jurisdictional Matters in Statement of the Case Content of Statement of the Case Content of Reasons for Granting the Petition (a) Conflicts (b) Importance (c) Error in Court Below (d) Arrangement of Reasons (e) Deferring Consideration of a Petition (f) Voluntary Dismissal of a Petition XV. Serving the Petition Service of Petition Service of Petition on Solicitor General in Certain Cases Involving Constitutionality of Federal Statutes XVI. Cross-Petitions for Certiorari Additional Time for Filing Cross-Petition When Cross-Petition Is Necessary Content of Cross-Petition XVII. The Opposing Brief Response to Petition for Certiorari (a) The Opposition Must Identify Any Misstatement of Fact or Law in the Petition or Risk Waiver (b) Time for Filing (c) Extension of Time in Which to File (d) Format of the Opposition (e) Content of the Opposition (f) Jurisdictional Statement (g) Questions Presented (h) Statement of the Case (i) Reasons for Denying the Petition

11 Detailed Contents xxv (1) Dealing With Claims of Conflict (2) Jurisdictional Arguments (3) Other Arguments for Opposing Certiorari (j) Length of Brief in Opposition (k) Waiver of Brief in Opposition XVIII. Reply and Supplemental Briefs Reply Brief by Petitioner Supplemental Briefs by Any Party XIX. Amicus Curiae Briefs and Briefs Filed by Invitation Amicus Curiae Briefs Supporting or Opposing Petitions for Certiorari Briefs of Nonparties Filed by Invitation of the Court XX. Action by the Court on the Certiorari Petition What the Court Does With Petitions for Certiorari Notification to Counsel Notification to Lower Court of Denial of Certiorari Suspension of Order Denying Certiorari Petition for Rehearing After Certiorari Is Denied Procedure on Appeals I. Introduction In General II. Time Limitations Time for Filing Notice of Appeal (a) Time Limits for Filing Notice (b) No Extensions for Filing Notice of Appeal (c) Method of Computing Time for Filing Notice of Appeal Time for Filing Jurisdictional Statement (a) Extensions Permissible (b) Untimely Filing of Jurisdictional Statement Other Time Considerations and Limitations III. Manner of Taking Appeal to Supreme Court Filing and Form of Notice of Appeal in Lower Court No Need to File Record at Time of Filing Jurisdictional Statement Docketing and Fees IV. The Jurisdictional Statement In General Function and Purpose Form, Arrangement, and Contents (a) Questions Presented (b) Lists of Parties and Corporate Disclosures (c) Tables of Contents and Authorities (d) Introductory Paragraph (e) Citation to Opinions Below (f) Jurisdiction

12 xxvi Supreme Court Practice, 10th Edition (g) Statutes Involved (h) Statement of the Case (i) The Argument, Entitled The Questions Are Substantial (j) Conclusion (Formal) and Names of Counsel (k) Appendix Containing Opinions, Judgments, and Findings Below V. Appellee s Motion to Dismiss or Affirm Response to Jurisdictional Statement Appellant s Opposition to Motion to Dismiss or Affirm Supplemental Brief by Any Party Briefs Amicus Curiae and Briefs by Invitation of the Court VI. Action by the Court The Court s Disposition of an Appeal In Forma Pauperis Proceedings In Forma Pauperis Proceedings In General Filing a Case In Forma Pauperis Who May Invoke In Forma Pauperis Procedures Individuals and Artificial Entities Filing Time Requirements Motion for Leave to Proceed In Forma Pauperis Requirement of Filing Supporting Affidavit or Declaration of Poverty Exceptions Form and Content of Supporting Affidavit or Declaration of Poverty Denial of In Forma Pauperis Status Frivolous, Malicious, or Repetitive Petitions Denial of In Forma Pauperis Status, Dismissal of Petitions for Certiorari, Barring of Future Filings Substantive Document Accompanying the Motion and Affidavit or Declaration Docketing the In Forma Pauperis Case Proof of Service Filing Certified Record Not Part of the Docketing Process Response to In Forma Pauperis Petition or Jurisdictional Statement The Court s Consideration of In Forma Pauperis Papers Court Appointment of Counsel in In Forma Pauperis Cases (a) No Appointment of Counsel by the Supreme Court Before Grant of Review

13 Detailed Contents xxvii (b) Appointment of Counsel by the Supreme Court After Grant of Review Duties of Court-Appointed Counsel Reimbursement and Compensation of Court-Appointed Counsel Certified Questions Jurisdiction to Review Certified Questions Form and Content of Certificates Procedure When Case Is Certified Certification by the Supreme Court of Questions of State Law to a State Appellate Court Original Cases I. Jurisdiction Constitutional and Statutory Provisions Suits Between Two or More States Cases Affecting Ambassadors, Other Public Ministers, and Consuls Controversies Between the United States and a State Suits by a State Against Citizens of Another State or Against Aliens Factors Relevant to the Decision to Decline Original Jurisdiction II. Procedure In General The Preliminary Sifting Preparation and Filing of Pleadings and Supporting Brief Brief in Opposition and Answer Intervention by the United States and Other Parties Amicus Curiae Briefs Procedural Steps After the Court Passes on Motion for Leave to File Complaint Proceedings Before a Special Master Right to Jury Trial Extraordinary Writs I. Jurisdiction In General Bases for Issuance of Writs of Mandamus, Prohibition, and Certiorari (a) Forcing Lower Courts to Comply With Appellate Mandate (b) Correcting Jurisdictional Error (c) Protecting Appellate Jurisdiction of Supreme Court

14 xxviii Supreme Court Practice, 10th Edition 11.3 Bases for Issuance of Original Writs of Habeas Corpus II. Procedure In General Common-Law Writ of Certiorari Writs of Mandamus and Prohibition Writ of Habeas Corpus Captions Preparing and Printing the Joint Appendix I. Introduction The Joint Appendix System II. Time of Filing Alternative Time Limitations for Filing the Joint Appendix (a) The Preferred Rule 26.1 Joint Appendix (b) The Deferred Appendix Is Not Favored III. Citation Conventions Making References in Briefs to a Deferred Joint Appendix or the Record (a) Citing the Record Rather Than the Appendix (b) Filing Briefs in Page-Proof Form IV. Designating and Preparing the Contents of the Appendix Items Required to Be Included in the Joint Appendix (a) Table of Contents and List of Relevant Docket Entries (b) Opinions, Decisions, Orders, and Judgments Below (c) Order Granting Review (d) Other Relevant Parts of the Record Agreement, Designation, and Cross-Designation as to Inclusion of Nonmandatory Items (a) Designation of Record Material for Inclusion in the Joint Appendix (b) Non-Record Material Should Not Be Included in the Joint Appendix (c) Timing of Designations (d) Failure of Party to Designate Assembling Portions of the Record to Be Included in the Joint Appendix (a) Preparing the Joint Appendix From an Appendix or Record Filed Below (b) Assembling Joint Appendix Materials When There Was No Appendix Below V. Printing the Appendix Methods of Printing or Reproducing the Joint Appendix Number of Copies Required

15 Detailed Contents xxix 12.8 The Clerk s Suggestions as to Printing the Joint Appendix (a) Clerk s Memorandum on Printing the Joint Appendix (b) Clerk s Sample Cover of a Joint Appendix Who Bears Initial and Ultimate Cost of Reproducing the Joint Appendix (a) The Initial Cost of Preparing the Joint Appendix (b) Taxing the Cost of Printing the Joint Appendix Use of Appendix or Record in Another Case Dispensing With Requirements as to a Printed Joint Appendix (a) Waiver of the Printing Requirement (b) Use of the Internet to Supplement Record Facts VI. Clerk s Return of the Record Return of Certified Record Following Disposition of Case The Briefs on the Merits Time Schedule for Filing (a) Opening Brief on the Merits (b) Opposing Brief on the Merits (c) Reply Briefs (d) Supplemental Briefs (e) Briefs After Argument (f) Extensions and Reductions of Time for Filing Briefs Physical Form, Number, and Color Length Names of Counsel of Record and Other Attorneys Service of Briefs Form of Citations and References to Parties Organization of Brief Content of the Questions Presented Content of the Statement of the Case Content of the Summary of Argument Content of the Argument (a) Argumentative Headings and Subheadings (b) Be as Brief as You Can (c) Use Good, Clear English (d) Selection and Arrangement of Points (e) Follow Your Own Pattern (f) Argue Reasons and Principles (g) How to Treat Cases (h) Statutes and Legislative History (i) Avoid Overstatement (j) Avoid Personalities or Scandalous Matter (k) Facts Outside the Record General Rule

16 xxx Supreme Court Practice, 10th Edition (1) Facts Subject to Judicial Notice (2) The Brandeis Brief (3) Facts Relating to Mootness Disclosing Subsequent Relevant Developments (l) Vary the Type Style Whenever Appropriate Preparing the Brief (a) Drafting the Brief (b) Finalization, Proofreading, and Cite-Checking Reply Briefs Amicus Curiae Briefs Supplemental Briefs Oral Argument Importance of Oral Argument Submission Without Oral Argument by Counsel Disfavored When Oral Arguments Are Heard Date of Argument Advancements Number of Counsel Time and Order of Arguments in Consolidated and Companion Cases Argument by Amici Curiae When Counsel Must Be Present Courtroom Etiquette (a) Registration of Counsel and Seating in the Courtroom (b) Addressing the Court (c) Dress (d) Tapes and Transcripts (e) Speaking Into Microphone (f) Nervousness (g) Eating Lunch Time Allowed for Argument (a) Requests for Additional Time (b) Keeping Track of Time (c) Long Arguments Impact of Questions on Time Limitations Opening and Closing by Appellant or Petitioner Methods of Preparing for Argument Content of Argument In General Beginning the Argument Presenting the Facts Presenting the Argument on the Law (a) Emphasize Reasoning, Not Authority (b) Get to the Heart of the Case (c) The Handling of Cases

17 Detailed Contents xxxi (d) Candidly Discuss Relevant New Legal Developments Reading and Quoting Flexibility and Questioning Rebuttal Arguments Anticipating Opponent s Argument Respondent s and Appellee s Arguments Avoidance of Common Mistakes Use of Maps, Charts, Models, and Motion Pictures Submission of Additional Memoranda or Briefs Following Oral Argument Conducting Oral Argument In Camera Petitions for Rehearing and Final Disposition of Cases I. Petitions for Rehearing The Governing Rules Time for Filing Power to Grant Untimely Petitions (a) The Term Rule (b) The Interests of Justice Limitation on Power to Grant Untimely Petitions in Tax Court Cases Proportion of Rehearings Granted Occasion for Petitioning for Rehearing (a) After Decision on the Merits (b) After Denial of Certiorari Formal Requirements II. Final Disposition of Cases Judgments and Mandates Interest and Damages Costs and Attorneys Fees Motions and Applications In General Form and Content When Motions Must Be in Booklet Format How Motions Are Presented Oral Motions Service Responses Special Considerations Governing Applications to Individual Justices Particular Motions, Including Motions to Dismiss Case (a) Motions to Dismiss One s Own Case (b) Motions to Dismiss Opponent s Case (c) Various Other Motions

18 xxxii Supreme Court Practice, 10th Edition 16.9 Clerk s Power to Act on Certain Applications for Extensions of Time Appeals to Court Stays, Injunctions, and Bail I. Introduction In General Procedure on Applications for Interim Relief II. Stays and Temporary Injunctions Need for Stays or Temporary Injunctions Authority for Stays and Temporary Injunctions Stays and Temporary Injunctions Pending Supreme Court Review Stays and Temporary Injunctions Pending Appeal in a Court of Appeals Stays of Interlocutory Order Need to Seek Relief in Lower Courts Application to Individual Justice Reapplication to Different Justice After Denial Altering or Vacating Stay Granted by Lower Court or by Individual Justice Action on Application to Individual Justice Referrals to Full Court Grounds for Granting Stays and Temporary Injunctions (a) Irreparable Injury and Balancing Equities (b) Whether the Court Is Likely to Review the Case and Reverse (c) Weight to Be Accorded Rulings of Judges Below (d) Other Considerations Opposing an Application for a Stay Reply III. Bail, Release, and Detention Bail, Release, and Detention in Federal Criminal Cases Release and Detention by Circuit Justices Prior to Certiorari Proceedings Release or Detention Pending Certiorari Proceedings Revocation of Release Orders Reduction or Alteration of Release Conditions Fixed by Court Below Bail for Individuals Committed Under State Authority Custody and Release Pending Review of Habeas Corpus Decisions Capital Cases In General Stays of Death Sentences

19 Detailed Contents xxxiii 18.3 Stays on Direct Review Stays on Collateral Review Stays on Successive Federal Habeas Corpus Petitions Stays Based on Challenges to the Method of Execution Vacating Stays Granted by Lower Courts Stays, Certiorari, and the Rule of Four Justiciability: Standing, Mootness, and Abatement I. Standing Standing to Raise Constitutional Issues in the Supreme Court (a) Article III Requirements (b) Prudential Considerations II. Introduction to Mootness and Abatement Termination of Controversies Through Mootness or Abatement III. Mootness Meaning of Mootness (a) Civil Cases (b) Class Actions (c) Voluntary Cessation (d) Criminal Matters Presentation of Facts With Respect to Mootness, Abatement, or Change of Law Form of Order to Be Requested When Case Is Mooted IV. Abatement Automatic Substitution of New Public Officer to Prevent Abatement Death of a Party While Case Is Pending in the Supreme Court Nonappealability of Rulings in Abatement Admissions to the Bar and Disbarment The Supreme Court Bar s Scope and Importance Requirements for Admission Application Form and Certificate of Admission From Highest Court Admission (a) On Written Motion (b) In Open Court (c) Group Admissions (d) Good Moral and Professional Character Change of Attorney s Name and Address on Records of the Court Appearance of Counsel Withdrawal of Appearance Admission of Counsel Pro Hac Vice Foreign Counsel

20 xxxiv Supreme Court Practice, 10th Edition 20.8 Disbarment, Disciplinary Action, and Resignation From the Bar Appendix I. Rules of the Supreme Court of the United States Appendix II. Clerk s Guidelines Regarding Filing Cases A. Guide to Filing Paid Cases B. Paid Cases Brief Chart C. Guide to Filing In Forma Pauperis Cases Appendix III. Clerk s Guidelines Regarding Cases Selected for Review A. Letter Upon Grant of Certiorari B. Memorandum Regarding Briefs on the Merits C. Memorandum Regarding Printing the Joint Appendix D. Guidelines for Electronic Submission of Briefs on the Merits E. Guide for Counsel in Cases to be Argued Appendix IV. Forms Forms Used in Connection With Petitions for Certiorari A. Application for Extension of Time to File Petition for Certiorari or to Docket a Case on Appeal B. The Rule 29.6 Corporate Disclosure Statement C. Petition for Writ of Certiorari D. Affidavit or Declaration of Mailing E. Notification to Other Parties of Filing of Petition F. Request to Clerk for Extension of Time to File Briefs, Motions, and Other Documents G. Brief in Opposition to Certiorari H. Short Forms of Opposition to Certiorari I. Petitioner s Reply to Brief in Opposition J. Application for Suspension of Order Denying Certiorari Pending Rehearing K. Petition for Rehearing of Order Denying Certiorari L. Motion for Leave to File Out-of-Time Petition for Rehearing of Order Denying Certiorari Forms Used in Connection With Appeals M. Notice of Appeal N. Jurisdictional Statement O. Motion to Dismiss or Affirm

21 Detailed Contents xxxv Original Cases and Extraordinary Writs P. Original Case Motion for Leave to File Complaint, Complaint, and Brief in Support of Motion for Leave to File Q. Petition for Common-Law Writ of Certiorari Under 28 U.S.C R. Petition for Writ of Mandamus Certificates S. Certificate of Questions From Court of Appeals T. Certificate of State Court as to Existence of a Federal Question Brief on the Merits U. Brief on the Merits Joint Appendix V. Joint Appendix to Be Prepared Following Grant of Review W. Letter to Clerk as to Costs of Preparing Joint Appendix Release and Stay Applications X. Application for Release Pending Appeal in Court of Appeals or Pending Certiorari Y. Application for Stay of Mandate of Lower Court Miscellaneous Motions Z. Motion to Dismiss by Petitioner or Appellant AA. Motion for Leave to File a Brief as Amicus Curiae BB. Memorandum Suggesting That the Case Is Moot CC. Motion to Advance Oral Argument DD. Motion for Leave to Increase Number of Counsel Arguing EE. Motion to Extend the Time for Oral Argument FF. Petition for Leave to Intervene to File Petition for Certiorari GG. Motion to Substitute Party HH. Notifications to Clerk Respecting Omitted Parties Appendix V. Statutes and Regulations A. Organization of Supreme Court B. Assignment of Justices C. Judicial Conference D. Resignation and Retirement E. Printing the Court s Decisions F. General Provisions for All Courts G. Supreme Court Officers

22 xxxvi Supreme Court Practice, 10th Edition H. Jurisdiction, Venue, and Fees I. Rule-Making Powers J. Filing Time Requirements K. Supreme Court Quorum; Harmless Error L. Habeas Corpus Procedures M. Special Habeas Corpus (AEDPA) Procedures N. Federal Appellate Rules 41 and O. Antitrust Appeals P. District of Columbia Courts Q. Supreme Court Building and Grounds R. Building and Grounds Regulations Appendix VI. Admission to the Bar A. Application for Admission to Practice B. Instructions for Admission to the Bar C. Group Instructions Admission to the Bar on Argument Days D. Large Group Instructions Admission to the Bar on Non-Argument Days Table of Cases Subject Index Table of Rules and Laws