Crime & Federalism

A lot of law blogs contain commentary on the Supreme Court. Often this commentary contains terms of art that many non-lawyers and lawyers alike, are unfamiliar with. Here are some commonly-used terms with plain-language definitions.

Brief in Opposition: When one party files a cert. petition, the winner below can file a brief in opposition to the cert. petition. The brief in opposition (or BIO) tells the Court why is should not grant cert. Some parties forgo filing a BIO at all, with hopes that it will tell the Court: "This case is so unworthy of review that we aren't even going to waste our time filing a BIO." Having a particularly worthy advocate file a BIO is often self-contradictory (why hire the best to oppose a cert. in a case that should not be reviewed?), and some specialists like the famed Alan Morrison admit to having omitted their names from BIOs for this very reason.

Some advocates somewhat jokingly claim that filing a BIO presents a conflict-of-interest between the lawyer and her client. The client, who won below, doesn't usually want the lower-court opinion reviewed where as the lawyer wants to cert. granted so that he can argue before the Supreme Court.

Cert. memo: A memo from a Supreme Court law clerk to her Justice recommending that certiorari be granted or denied.

Cert. pool: Because the Supreme Court receives thousands of cert. petitions each year, all Justices (except Stevens) "pool" their clerks together. That each, clerks from each chambers divide the cert. petition between them. In practice, this means that only one or two Supreme Court clerks review any given cert. petition. The use of the cert. pool is a matter of some controversy, since it gives recent law graduates too much power over the Court's docket. Moreover, since law clerks are fearful of having cases digged, it's thought that the cert. pool prevents many cert. worthy cases from reaching the Court.

Cert. worthy: Refers to the relative merits of a given lower-court ruling or cert. petition. A case is cert. worthy in the same way a person is trustworthy. Cases involving circuit splits and involving a substantial federal question are cert. worthy.

Circuit split: A disagreement between one or more federal circuit court of appeals on an issue concerning federal statutory or constitutional law.  The current Court has lately become obsessed with resolving circuit splits, and will frequently grant cert. to resolve the split, so long as the split is direct and involves an important federal issue. Not all circuit splits are necessarily "cert. worthy."

Conference: Refers to two meeting. First, the meeting all nine Justices have where they meet to vote upon whether to grant cert. in a given case. Second, it refers to the meeting Justices have after hearing a week's worth of oral arguments. At this conference, the Justices case their preliminary vote on the cases heard: It's the only that all nine Justices meet to discuss a case.

CVSG: An acronym that stands for "calls for the views of the Solicitor General."  When someone is litigating the meaning of a federal statute, the Court will "invite" the Solicitor General to provide the federal government's view of what the law means.  Invite is in quotes because the Solicitor General's Office views the "invitation" as an assignment. Because the Supreme Court's docket is largely controlled by Supreme Court law clerks, and because these Supreme Court law clerks rarely have patent law experience, the Court will frequently CVSG complex patent cases.

DIG (or "digged"): An acronym for "dismissed as improvidently granted." Sometimes, after granting certiorari, the Court will discover that the Court should never have granted cert. Oftentimes the Court will discover a jurisdictional defect in the case. (Although the Court seems all-mighty, it does not have the power to hear every type of case.) Reportedly, it is something of a badge of shame for a Supreme Court clerk to have a case he or she recommended that cert. be digged. Because of this "badge of shame," it's widely believed that Supreme Court clerks are risk averse when drafting their cert. memos.

Docket: The Court's docket contains the cert. petitions and cases pending before the Supreme Court. To use a cliché, the Supreme Court's docket contains the cases and cert. petitions on its "plate."

First Monday in October: The first day of the Supreme Court's term. It's "opening day" for the Supreme Court.

GVR: An acronym for "grant, vacate, and remand." The Court will GVR a case when it thinks, in light of a recent Supreme Court opinion, a lower court-opinion should be reviewed. In other words, the lower-court opinion might originally have been properly decided; but it must be reviewed in light a new case. Thus, the Court will grant the petitioner's petition for a writ of certiorari, vacate the lower court's opinion, and remand the case for consideration in light of the Supreme Court's new case. Sometimes lower courts apply the Supreme Court’s precedent.  Other times they ignore it and hope that since the Court just heard a similar case, it won't grant cert. and bench-slap them.

Merits brief: The parties file merits briefs after the Supreme Court has granted cert. Depending upon whether it’s the petitioner's or respondent's brief, the merits brief will argue that the Supreme Court affirm or reverse the lower-court's opinion.

Merits phase: Pre-cert. is the "cert. phase," where as post-cert. is the "merits phase" of the case.

Petition for a write certiorari/cert. petition: A formal request, contained in a legal brief, asking the Supreme Court to review a lower-court opinion.

Petitioner's brief: In the merits phase, the brief of the party who originally sough certiorari.

Reply brief: In the merits phase, the second brief of the party who originally opposed certiorari. The petitioner files his petitioner's brief, the respondent files the respondent brief, and the petitioner gets to "reply" to the arguments in the respondent's brief.

Respondent's brief: In the merits phase, the brief of the party who originally opposed certiorari.

Stern & Gressman: Denotes the original two authors of, and is shorthand for Supreme Court Practice. Now in its eighth edition, Supreme Court Practice is, according to Kenneth Star, an "indispensable treatise for the Supreme Court practitioner. Both scholarly and practical, brimming with insights for the academic and the practicing lawyer, the treatise richly deserves a highly prominent place on the practitioner’s desktop."  Supreme Court Practice, is also known as the Bible of Supreme Court practice and procedure.

Term: Orin Kerr defines "Term" here:

[T]he Supreme Court works on a yearly calendar schedule. The first day of the Supreme Court's annual schedule is the first Monday in October, as set by a federal statute. [E]verything the Court does starting on that day in October until the same day the next year is part of the "October Term" of that year. The Court generally starts hearing oral argument for the cases on its docket on that day, and generally hears cases on and off until the early spring. The Court then tries to get (and under Rehnquist, succeed[ed] in getting) all of those cases decided and published by the end of June.