The Volokh Conspiracy

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Volokh Conspiracy

Tip for filing Supreme Court amicus briefs: Sometimes the real deadline is several days before the official deadline


Here's something I learned while filing the Keefe v. Adams amicus brief: Sometimes an amicus brief can come too late even if it's filed before the deadline.

The amicus brief in Keefe was due 30 days after the petition was docketed, which meant the brief had to be sent to the court by March 30, and could have arrived three days later and still have been timely (see, e.g., Rule 29). But the respondents waived their right to file a response, so on March 15 the Supreme Court scheduled the petition to be reviewed by the court on March 31.

If I had the brief mailed on March 30, it would have been legally timely—but practically too late. Indeed, even if I had arranged to have it arrive at the court by March 30, it might well have been too late to make its way into any supplemental pool memo and to affect the justices' evaluation of the case.

Fortunately, I checked the docket last week, saw what was going on and managed to accelerate things so that the brief would arrive today, March 27. I also checked with the Clerk's Office, and was told that this would provide enough time for the brief to be read and considered.

So the moral of the story: When planning a certiorari-stage amicus brief, (1) keep in mind that you might need to file it several days earlier than the deadline, and (2) periodically check the docket to see whether the case is being scheduled for an early conference, which would indeed require you to accelerate your schedule. (I'm checking now whether Bloomberg Law's Track Docket feature can automatically notify me of this, so I won't have to manually check this for future cases.)