Court Briefs

Kannon Shanmugam: All right. Well, the windchill here in New York is about four right now, so don't rub it in.

But I'm also rejoined by our partner Will Marks, who's back at home base in Washington. And Will, I assume that there are no pods of dolphins on K Street.

Will Marks: No pods of dolphins, but I have braced the active hail.

Kannon Shanmugam: Excellent. Well, so today we are going to talk about the question that I think all of us have been receiving more than any other over the last couple of months, which is “when is the Supreme Court going to decide the big tariffs case?” And I'm afraid that we can't give you an answer to that question, but it got us thinking a little bit about the Supreme Court's calendar and how the calendar works.

And so we thought what we would do in today's episode is provide a little bit of a primer about that. And I thought what we would do is start with just a general overview of how the Supreme Court's calendar works.

So, Masha, can you explain this thing called a term?

Masha Hansford: I sure can, Kannon. I will say, well, they'll at least offer some thoughts about the tariff case as a reward for people listening to the outline of the calendar.

But the basic Supreme Court term runs from October to April. That's when the court hears arguments in the sitting, starting on the first Monday in October.

Now, there are occasional exceptions to that. In 2020, the court actually canceled the April sitting because of the pandemic. And then it rescheduled it for May. In 2024, the court added a May sitting in order to hear the presidential immunity case. And I think historically, occasionally, it has added a summer sitting. But usually, oral arguments run from October to April.

And opinions in argued cases are issued kind of whenever they are ready after the argument, which usually ends up starting in December. Some years, it doesn't start until January.

And usually, the court finishes issuing all the decisions in argued cases by the end of June.

And then traditionally, the court breaks for its summer recess, which used to be a quiet time for the court.

I have to say, the emergency docket does not play by any of these rules. And the activity on the emergency docket continues over the summer, just based on when emergency applications are filed.

Those opinions come out over the summer. They come out night and day. There's no rhyme and reason to it. So the poor justices and law clerks no longer get a reliable summer break. And poor Supreme Court practitioners also don't get a reliable lull in the Supreme Court practice, especially those who work for the federal government.

Kannon Shanmugam: So that's how the Supreme Court's calendar ordinarily works. But of course, for those of us in practice, nine tenths of the ballgame is just getting in the door at the Supreme Court.

And particularly with the court hearing only somewhere between 50 to 60 arguments a year, it is really important to figure out how to get the Supreme Court to grant review or certiorari.

And so, Will, tell us a little bit about how that process works.

Will Marks: Sure. So as you mentioned, there's a process by which a party has to actually ask the court to grant review before the court actually grants review. And there's a briefing process called the certiorari process.

And so the way it normally works is kind of in three stages.

The first stage is that you have about three months after the Court of Appeals issues its decision for the losing party to file a cert petition asking the court to grant review. That kicks off a briefing period.

And in the ordinary course, there's a brief in opposition that's filed that tells the court, here's why you shouldn't take the case. And then the petitioner, the party seeking review, has the ability to file a reply brief addressing the respondent's arguments.

Once that briefing is completed, it's teed up to what's called a distribution date and then ultimately a conference date.

And so the conference date is the Fridays during the term when the justices meet. They discuss the outstanding cert petitions that are ready for their review and decide whether to grant review.

And they issue their decisions in that normally on the following Monday in what's called the orders list, which is available on the Supreme Court's website and will tell which cases the court is granting, which usually is a very small list, and then will also say the cases the court is denying, which is a much longer list.

Kannon Shanmugam: And so, Will, how does that process interact with the calendar that might be coming up? How does it interact with the calendar that Masha set out and are there better or worse times to be hitting the court with your cert petition?

Will Marks: Sure. So there's really three times around which cert petitions clump.

And so what you see the first time and we're kind of when I say cert petitions, we're talking about the whole petition process being complete, the brief in opposition being filed and the reply brief. So you have a complete package.

The first clump of time is going to be in the long conference, and that's in September before the court hears the first day of arguments. And that's when all of the cases that have been teed up over the summer recess are considered by the court.

Typically, that's considered the worst conference to be in because the number of cert petitions that's being considered is really high. And so there's a lower likelihood of a grant.

The next time you see a clump is at the cutoff date in December. And this is the time by which the case has to be teed up and ready for the court's review in time for the court to review it at its first January conference.

And that's the time when the court grants review in the cases it's going to hear for argument that term. It's the last time you can get a case to be argued in a particular term. So if you get your case teed up at that time, you can get a March or April argument date.

The final time you see a clump is in May, and that's the there's a cutoff date then that allows the court to consider whether to grant a case before it goes into its summer conference.

And so this is if you get it teed up by this time, it's a way to have a decision on your cert petition and not get kicked into the long conference. So if you file in May, you're usually going to get a decision by the end of the court's term in June.

Masha Hansford: And just to chime in on that, Will, those December and May cutoff dates, you also see a lot of the briefs from the federal government, the briefs filed by the solicitor general's office coming in by those dates.

So in cases where the court has called for the views of the solicitor general, that those briefs often come in and those operate effectively as informal deadlines for the S.G.'s office.

And also, of course, a lot of the briefs in opposition and government cases come around those times because everybody understands that it's helpful for the court to have the case in a position that it can fill its calendar as it needs to.

And so it can resolve as much as it can before it recesses for the summer, as well.

Will Marks: Yeah, that's a great point, Masha. And one thing that I should note is that, you know, whereas with the long conference, you generally don't want to be part of that conference because there's more cert petitions being filed and you have more competition, for lack of a better word.

Typically, we think of the cutoff dates in December and May as being better times to file a cert petition because those are times of the year when the court is looking for cases to grant for argument.

In December, it's for the March and April arguments.

And then at the cutoff date in May, they're looking for cases to be argued in the following term in the fall.

And so if you get your cases then in at that time, we typically think that there's a slightly better chance for the court to grant.

Masha Hansford: And on the flip side, if you're the respondent, you would love to blow through that cutoff date, but most of the time the petitioner will not consent to an extension that takes you past the cutoff date precisely because it's in the petitioner, the party that wants Supreme Court review's interest for it to be teed up before the cutoff.

Kannon Shanmugam: So once the Supreme Court grants review in a case, I think people are often surprised by how quickly the briefing can unfold, and sometimes it can take as little as three months for a case to go from a grant of review to the oral argument.

But for those who have been patiently waiting for the answer to the question of when are we going to get the tariff's opinion, I guess the real question is, when does the Supreme Court issue opinions? And I guess the short answer is whenever it wants.

But Masha, tell us a little bit about how that process works and what those of us on the outside know or don't know about what the court's going to be deciding.

Masha Hansford: Yeah, I think you're right, Kannon, it's whenever the court wants, because there are no deadlines for its opinions.

So the court announces opinions sometimes on argument days, and occasionally it adds days when the justices weren't already planning to take the bench for opinion announcements.

And it does provide notice on its website, it says that the court may issue opinions on the following day, so the press and Supreme Court observers know to be tuned, to stay tuned for the opinion. And although it says it may issue opinions, I guess to give a wiggle room if an opinion is ultimately not ready, I am not aware of a time when it said it would issue opinions but didn't actually issue opinions.

It adds a lot of non-argument opinion days towards the end of the term, and those very last weeks of the term, it might be getting out as many as 10 opinions in a single week, sometimes even more.

But sometimes it adds days beyond argument days earlier on, just when an opinion is ready.

So a couple of weeks ago, the court added a Friday when it was not already sitting for arguments. And so there was a lot of buzz that that must be the tariff decision, that's the time-sensitive one, that must be why the court is adding a date.

And the court played a great prank on everybody who was hitting refresh for the 10 a.m. opinion announcement, and instead issued a very technical, habius opinion instead of the tariffs case.

And I think that the reality is that it's just hard for the court to get big, controversial opinions out quickly, because it requires corralling separate opinions. And even when the court feels some urgency for a case like the tariff case, it's hard to get everybody to write and turn around without a concrete deadline. And that's why you see so many of the big decisions in June.

Now the tariff case was argued in November towards the start of the term, and I do think the court feels some urgency to get that decision out. So this is not a case that I expect in June, but I think it's still a case that, personally, I would be less surprised to see in March than in January. Of course, it could be absolutely any day, but I think that to me seems more likely.

I'm curious what you think, Hannon, and what you think, Will, what's your best guess?

Kannon Shanmugam: All right, Will, I'm going to put you on the spot. When are we going to get the opinion?

Will Marks: Yeah, so look, I mean, I thought, you know, they really tricked me with the Friday opinion announcement.

I thought it was coming out, and I kind of always said I thought the court would do what they did with the TikTok ban, which is hear argument and then issue the opinion very quickly.

You know, I've got to say, Masha, my intuition now is that if they haven't felt the need to move quickly at this point, to the extent that there are a lot of dissenting or concurring opinions, I wouldn't be surprised to see it come out in June.

I'm hoping it comes out more quickly, but I would not be surprised.

Masha Hansford: OK, so Will has two weeks ago or June, and I have the whole middle, I think. I'll take those odds.

Kannon Shanmugam: All right, well, I'm going to go out on a limb and guess March the 31st, but we're just going to go back and re-dub this if that proves to be incorrect. So we shall see. But it truly is anyone's guess. And in the meantime, all of us will be waiting.

Well, that wraps up today's episode of Court Briefs. We hope you enjoyed the podcast and our new format.

As always, if you'd like some more information about Paul Weiss's Supreme Court and appellate litigation practice, please visit us at our website, which is PaulWeiss.com.

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It's great to be back with another season of Court Briefs. We'll be back with a new episode soon. But until then, thank you for joining us and goodbye.