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Opposing Cert: Addressing the Issues Presented

May 1987
Inside Litigation

In arguing against certiorari, a cardinal rule is to respond to a claim that Supreme Court review is necessary to resolve a conflict in lower-court decisions.

By Andrew L. Frey, Kenneth S. Geller and Daniel Harris

This article is the second of two parts. Andrew Frey and Kenneth Geller, partners in the Washington, D.C. office of Mayer, Brown & Platt, served for many years as deputy solicitors general in the Department of Justice. They write regularly on appellate advocacy for Inside Litigation. Daniel Harris, a partner in Mayer, Brown's Chicago office, clerked for Justice Brennan.

In the first installment of this article (see Inside Litigation, March 1987, p. 27), we discussed opposing certiorari with arguments that focus not on the merits of the questions presented for review but on other defects in the case (such as interlocutory status, existence of an alternative state law ground for the decision, or mootness) that make it a poor vehicle for deciding the questions presented. Those kinds of arguments will not always be available, however; even when they are, you will usually still want to say something about the certworthiness of the issues presented in the petition. It is to this topic that we now turn.

Dealing with claims of conflicts. The Supreme Court does not sit to correct errors in individual cases; its principal role is to provide uniformity in federal law. Therefore, the cardinal rule in addressing the merits of petitioner's issues is to be certain that your brief in opposition responds to any claim that Supreme Court review is necessary to resolve a conflict in lower court decisions. The first endeavor, of course, should be to show that there is in fact no conflict — that is, that it cannot be said with confidence that another court would reach a different result. If your efforts to dispel the claim of conflict are plausible, they should succeed, for the Court is far too busy to waste its time with speculative or illusory disagreements among the lower courts. Here are some pointers for distinguishing allegedly conflicting cases:

The conflicting decisions may have been rendered by the wrong kind of courts. Conflicts with federal district court decisions or with rulings of intermediate state appellate courts are readily and almost invariably brushed aside by the Supreme Court, because the conflict can be eliminated by the courts of appeals or state supreme courts. By the same token, the Court views conflicting decisions within the same circuit as a problem to be resolved within the circuit (e.g., by rehearing en banc).1

It may be possible to characterize as dictum the adverse language in the cases with which yours allegedly conflicts.

It will often be possible to show factual distinctions in the cases that explain the seemingly conflicting results and reconcile the decisions. This may be so even if the courts themselves have not explicitly focused on the distinction.

Carefully review the later decisions of the courts whose rulings are said to be in conflict with your decision in order to see if they have receded from or modified their position on the issue. Such later decisions might convince the Supreme Court either that the earlier cases cannot be read as the petitioner suggests or that the conflict might disappear if the same issue arose in those courts today.

Sometimes, of course, there is an undeniable conflict of decisions, and you have no procedural rabbits to pull out of your hat. You may still be able to minimize the conflict by making one or more of the following arguments effectively.

The legal issue may be in a state of flux and would benefit from further consideration by the lower courts.

The issue is insufficiently important to require Supreme Court review despite the conflict. For example, the issue might arise too infrequently to justify a place on the Court's docket, or the conflict might involve an issue on which national uniformity is not essential, such as a matter of judicial administration.

The perpetuation of the conflict may be uncertain. Suppose the conflicting decision is an old one, and all intervening cases from other courts have gone your way, in such circumstances, it may be reasonable to expect that the court that rendered the conflicting decision would reconsider its result in light of intervening developments. On the other hand, if the conflict is a fresh one, check whether rehearing or rehearing en banc has been granted, which of course would wipe out the conflict; even the pendency of a petition for rehearing in the conflicting circuit may prove reason enough to deny certiorari in your case and await further developments. If the conflict persists, the Supreme Court can resolve it in the other case.

If the conflict relates to the construction of a statute or regulation, see whether recent amendments have altered the landscape sufficiently that later interpretations by the lower courts can be expected to harmonize current disagreements. You may also be able to show that Congress or an agency is thinking about repealing or modifying the statute or rule in a way that would eliminate the ground for conflict or prevent recurrence of the issue.

Recent or impending changes in state or federal law may also rob even a constitutional issue of any prospective importance by making it unlikely to recur.

Your case may be a poor vehicle for resolving the conflict. If the case presents an unusually complex or messy factual record, the Supreme Court might be reluctant to wade through it to resolve the conflict, particularly if the morass raises doubts about whether the legal issue can really be reached and decided. Perhaps you can argue that the facts are so one-sided against the petitioner that the case would come out the same way regardless of how the conflict is resolved. The government for many years successfully used this argument to stave off review of the proper standard for assessing effectiveness of criminal defense counsel under the sixth amendment and the quantum of nonhearsay evidence necessary to permit use of coconspirator declarations against a defendant in a criminal case.

The legal issue may be in a state of flux and would benefit from further consideration by the lower courts. Keep in mind that the Court must proceed with caution, especially in the arena of constitutional adjudication, because its decisions announce final, nationwide rules that often affect millions of people. Ill-conceived constitutional initiatives by lower courts can be tolerated, but a ruling by the Supreme Court that fails to weigh accurately or appreciate the importance of certain aspects of an issue could have a severe adverse impact. If your issue is one on which there continues to be ferment in the lower courts or on which few courts have yet spoken, or if it depends in part on specialized knowledge that is not yet subject to any consensus, the Court may be happy to let it percolate. The more important the issue is, the easier it should be to persuade the Court that it had best tread carefully, letting others weigh the issue and availing itself of the benefit of their wisdom before settling such a momentous matter.

Arguments on the merits. We have said little thus far about persuading the Supreme Court that the lower court decided your case correctly. This is not to say that the merits should be ignored. Common sense suggests that if the call is otherwise a close one, a justice is more likely to vote to grant review if the decision below strikes him as wrong. But inexperienced practitioners all too often give undue emphasis to the merits at the expense of the kinds of arguments outlined above. As noted earlier, the Supreme Court does not view its role as that of a super court of appeals — i.e., its primary function is not correction of errors in individual cases.

Concentrating on the merits is especially unwise when there appears to be a legitimate conflict between the challenged decision and decisions of other federal courts of appeals or state supreme courts. The Supreme Court's opportunity to weigh the merits of a legal question at this stage of its process is quite limited, accordingly, if the Court concludes that there is a conflict on a question that seems worthy of its consideration, it is unlikely to be dissuaded from granting plenary review unless the merits seem transparently clear, which will not often be the case when lower courts have disagreed on a significant issue.2

If there is one exception to the foregoing principle, it arises when there is some prospect that the Supreme Court will view the decision in your favor as being so contrary to one of its own well-settled precedents or so clearly in error as to warrant its intervention but not to require plenary consideration. There are probably one or two dozen cases each term in which the Court reverses summarily. If you fear that your case might be a candidate for summary reversal, it is important to address the merits. Keep in mind, though, that to avoid summary reversal you ordinarily need to convince the Court not that the decision below is correct, but merely that the issue is sufficiently debatable that it would not be responsible to dispose of the case without full briefing and argument (and, of course, that the issue is not important enough to warrant that larger investment of the Court's resources.)

Amicus curiae. A petitioner generally welcomes the support of other groups that may be affected by the disposition of the issue presented. Amicus briefs sometimes help persuade the Court that the issue has sufficiently broad significance to justify its involvement. Amicus briefs opposing the petition, however, are far less useful; indeed, they are often counterproductive because they attract the Court's attention to your case and suggest that the decision below has significance beyond its effect on the parties. Accordingly, amicus briefs opposing a petition usually should be discouraged. If the Court grants the petition, there will be time enough then for your amici to place their views before the Court.

Dealing with petitioner's amici is a different matter. If they are not government entities, amici may not file a brief without the consent of the parties or the grant of a motion for leave to file. Since the Supreme Court almost invariably grants such motions if the amicus brief is timely filed, it is not only ungracious but wholly ineffectual to withhold your consent. Rather than deny consent, you should condition it on agreement by the amicus to file early enough that you will have an adequate opportunity to respond to anything in the amicus brief that may need response. (Ordinarily, the brief of an amicus at the petition stage is due at the same time as the brief in opposition. With such timing, the respondent is unable to include in the brief in opposition its answers to the arguments of amici. The Court will receive a supplemental memorandum responding to new points raised by petitioner's amici, but it is better, when it can be arranged, to answer the arguments for review in a single document.)

Courts requests for the government's views. The solicitor general does not monitor the petitions filed in cases win which the United States is not a party. Yet such petitions often appear to present important issues concerning the interpretation of federal statutes or regulations or involving the programs or operations of government departments or agencies — issues about which the federal government may have some special knowledge or responsibility. On many occasions, therefore, the Supreme Court will invite the solicitor general to file an amicus brief expressing the views of the United States. That brief is likely to carry considerable influence with the Court, especially if the solicitor general advises the Court that the issue is of no particular importance.

If the Court grants the cert petition, there will be time enough then for your amici to place their views before the Court.

The solicitor general's amicus brief is the product of a thorough deliberative process that involves review of the petition, brief in opposition, reply brief, and amicus briefs and consultation with every potentially interested government agency. You need not stand idly by while this process — which can so influence the fate of the petition — transpires. The government ordinarily is receptive to submissions by the parties explaining what action it should take in response to the Supreme Court's request for its views. You should identify the people who will be participating in the government's decisional process and place before them your reasons why the government should recommend against a grant of certiorari. This may be done by phone call, memorandum, or in appropriate instances, personal meetings: the form of the communication depends on the exigencies of the case and the preferences of the officials to whom your views are directed.

Petitions held awaiting decision of another case. Is the issue in your case likely to be controlled or materially affected by the ruling in some other case in which the Supreme Court has already granted review? If so, there is a good chance that the Court will refrain from taking any action on your case until the other case is decided. If the petitioner has suggested to the Court that the petition should be "held" for another case, your brief in opposition should address that suggestion and explain (if possible) why the outcome of the pending case is not likely to bear on the proper disposition of your case.

In any event, you should be alert to spot instances in which your case is in fact being held. How can you tell if this has happened? After you have filed your brief in opposition, you should find out from the clerk's office the date of the conference at which the Court will consider the petition. If the Court does not act on the petition on the Monday following the conference and does not relist it for another conference fairly promptly, it is a good bet that the case is being held.

If the Court has decided to hold your case, nothing will happen until the principal case is decided. At that juncture, your case will be rescheduled for an early conference, prior to which the author of the Court's opinion in the principal case will review your "held" case and make a recommendation as to its proper disposition — e.g., grant or deny certiorari or, as often occurs, vacate and remand to the lower court for further consideration in light of the intervening decision in the principal case. If you wish to have a say regarding the impact of the intervening decision, you must act promptly to prepare and file a supplem ental memorandum setting forth your views.

Of all areas of Supreme Court practice, the one in which the quality of advocacy may make the greatest difference is in responding to a plausible certiorari petition. By employing the foregoing tips whenever appropriate, your chances of success should be materially enhanced.

1. See Wisnniekwski v. United States, 353 U.S. 901 (1957). Return to article
2. Once every few terms, the Court will grant certiorari and summarily affirm in order to resolve a conflict on an issue that requires attention but that also seems so one-sided that full briefing and oral argument are unnecessary. Such occurrences are too rare to influence your strategy.Return to article

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