If the plaintiffs in the 6th Circuit decide to file a petition for certiorari, rather than seek a rehearing en banc, it is very unlikely that it will be argued this term.
Consider this timeline:
- 11/14/14 – Let’s say a Cert Petition is ready to go, and filed in one week (that is the pace set by the King v. Burwell petition from the 4th Circuit).
- 12/13/14 – The states have 30 days to reply, assuming the states do not seek an extension. (It may be interesting if the plaintiffs take a page out of the Jones Day playback, and pre-emptively oppose any extensions).
- With this schedule, it would be distributed for conference around the end of January (optimistic) or the beginning of February.
In order to make it the argument calendar for the April sitting, these cases seem right past the cusp. For example, last year ABC v. Aereo was distributed on 12/24 and granted on 1/10. It was argued on 4/22. Lane v. Franks was distributed on 1/10 and was granted on 1/17. It was argued on the penultimate day of the term, 4/28. If there is any chance of the petition being granted, it would seem to have to be distributed at the beginning of January, assuming the Court sticks to its usual practice relisting once. Even then, we would need to be distributed in the middle of January. They seem to be a few weeks behind the threshold.
Unless the Court denies any request for an extension, expedites the briefing, and goes out of its way to add an extra day at the end of April or beginning of May–all possible–I find it hard to believe this case makes it up now. Then, we are stuck with an argument in the fall of 2015, and presumably, a decision 4 months before a Presidential Election. Also, we will have had the benefit of the 1st, 5th, 8th, and 11th Circuits weighing in, for whatever that is worth.
Would this, perhaps, make the plaintiffs in the 6th Circuit seek rehearing en banc? They won’t make it to the Court this year, so maybe get the bans invalidated without having to go to the Court. The parties in Kentucky, Ohio, Michigan, and Tennessee would receive their relief much, much sooner.
In any event, all eyes turn to the 5th Circuit, where arguments will be heard in January in New Orleans.
Update: On Twitter, @Greg51 raises an interesting possibility.
— greg (@Greg651) November 7, 2014
If the states waive their reply, or join a joint-petition for cert, then that pushes everything up 30 days, and makes argument this term feasible. Would the states do this? Probably not. Their law was upheld. Why are they in a hurry to have that changed. And as long as at least one of the four states files a reply, this strategy won’t work.
Update 2: Chris Geidner reports that the plaintiffs are planning on filing by Nov. 14 (the date I made up in my head as the soonest possible date of filing!):
Al Gerhardstein, representing Ohio’s James Obergefell, said he will be filing a cert petition at the Supreme Court, hopefully by next Friday, Nov. 14. Dana Nessel said that she would be doing the same on behalf of her Michigan clients, April DeBoer and Jayne Rowse, although she did not lay out a timeline for the filing.
Update 3: Let me break down the numbers a bit more.
- 11/14/14 – Cert petition Filed
- 12/13/14 – Brief in Opposition filed
- 12/25/14 – Usually, the petitions are distributed roughly 12 days after the BIO is filed.
- 12/30/14- Because there is no distribution on 12/25/14, the soonest date thereafter would be 12/30/14.
- 1/16/15 – With a 12/30/14 distribution date, it would be considered at the 1/16/15 conference.
At this point, if the Court grants on 1/16/15 we would be right at the cusp for argument this term, in the absence of additional dates. If, as the Court’s practice has been (which may not apply here), it is relisted, that would push it to the 1/23/15 conference. Based on past experiences, that would probably be beyond the cusp of where the Court could hear the case this term, without adding extra days. If the state requests an extension, and it is not at conference on 1/16 or 1/23, it gets kicked to 2/20. That is definitely too late. So to recap what I wrote above, if it is granted at the end of January or beginning of February, it is probably too late without adding new days. If the Court manages to get this petition on the 1/9/15 conference, it is still viable this term.
Update 4: In the event that the plaintiffs waive their reply, or file a quick one, the petition would be distributed around December 18, which would put it at the January 9 conference. That is still in the ballpark.
They can do this under Rule 15.5 of the Court:
The Clerk will distribute the petition to the Court for its consideration upon receiving an express waiver of the right to file a brief in opposition, or, if no waiver or brief in opposition is filed, upon the expiration of the time allowed for filing. If a brief in opposition is timely filed, the Clerk will distribute the petition, brief in opposition, and any reply brief to the Court for its consideration no less than 14 days after the brief in opposition is filed, unless the petitioner ex pressly waives the 14-day waiting period.
In other words, if a petition is filed on 11/14, a brief in opposition is filed on exactly 12/13 (with no extension), and a reply is waived, then it can be distributed on 12/18, and conferenced on 1/9, making an argument date this term possible. Even with one relist, it gets potentially pushed past the normal end of the term. But again, if the Court wants to hear this case this term, it can. If it doesn’t, two reslist will push it.
Update 5: In light of some new information I learned, I provided these comments to a reporter today, which I repost here:
Historically, the latest a petition for certiorari could be granted, and heard in the same term, was by the beginning to middle of January. Such cases are argued in April at the end of the Court’s normal calendar for arguments. If certiorari is granted at the end of January, or beginning of February, the case is scheduled for argument the following October. But this is not a normal case.First, the plaintiffs have announced they will file a petition for certiorari really soon, perhaps in the next week. While the states would have 30 days to reply, and can request an extension that would usually be granted, I’ve heard that the states do not plan on waiting, and may file their brief in opposition to certiorari before the 30 days are up. If the plaintiffs then waive their reply, or file something quickly, it is feasible that this case could be before the Justices not too long after Thanksgiving, with a grant before Christmas. With such timing, the case would be argued in March or April, with a possible decision by June of 2015.Second, even if the parties do not move this fast (which they probably will), the Court can always order expedited briefing, or add additional argument days as needed.In other words, it is possible this case will be heard this term if everyone moves really, really fast.