Covington’s SCOTUS FOCUS: To Grant or Not To Grant – The Cert. Process

The Supreme Court of the United States (SCOTUS) is moving toward the end of its Term. Oral arguments are completed, opinions are being issued, and drafting is wrapping up on major opinions so any dissenting opinions can be finalized and all opinions issued early in the summer. And the Court already is looking to its next Term that will begin in October, after the summer recess, by reviewing petitions for certiorari (cert.) to choose the cases to grant and hear in the fall. How does this all get done?

Our Supreme Court watchers focus on a few key aspects of SCOTUS practice to keep abreast of its docket and anticipate legal developments that affect our SCOTUS cases (both merits and cert. stage), as well as our appellate matters across the country.

• Order Lists and Relists: The Supreme Court issues Order Lists on a regular basis, more or less weekly during the busy parts of the Term. An Order List announces the many cases in which the Court decided at its weekly Conference to deny review, and the few cases in which it granted cert. But individual case dockets also often reflect when a particular case has been "Relisted." That is a signal that the Justices at Conference were not ready to deny review and are considering the case further. That necessarily increases the odds of a grant because the vast majority of cases are denied at the first Conference they are considered.

• CVSGs: The Court's Order Lists also sometimes include an order "inviting" the Solicitor General (the attorney for the federal government) to file a brief "expressing the views of the United States" on whether the Court should grant review. This is an "invitation" that is never declined. These invitations are also known as CVSGs "Calls for the Views of the Solicitor General." CVSGs are one of the few appellate filings that do not have a set due date, although there are certain practices that provide for their filing to meet certain informal Court schedules. A CVSG is another significant sign that there is a much higher likelihood that cert. may ultimately be granted in that case.

• Lingering Cert. Petitions: Then there are the cert. petitions that are not relisted and where there is no CVSG, but the Court also does not deny the cert. petition in a timely manner. That is an indication that the case is likely being "held" because there is another case where the Court already granted cert. that could have a significant impact on the pending cert. petition. There is no external order indicating that a case is held. This is an important strategic consideration for cases recently decided in the courts of appeals so that those cases gain the benefit of any favorable Supreme Court developments. Shortly after the Court issues its opinion in the granted case, the Order List will include orders in any cases that were "held" for that opinion and indicate the disposition of the cert. petition-often granting cert., vacating the court of appeals' opinion, and remanding to the lower courts (a GVR).

We'll keep our SCOTUS FOCUS on the docket and look forward to the rush of opinions in June.