THE SUPREME COURT DOESN’T CARE IF YOU’RE BUSY

Busy, Busy SCOTUS

“Application (16A166) denied by The Chief Justice.”

That’s all the Supreme Court said Aug. 16 when it refused to extend the deadline for a school board to file its certiorari petition.

The school board intends to ask the high court to review lower court rulings allowing a transgender high school student to use the bathroom of his gender identity rather than his biological sex.

On Aug. 15, however, the school board asked the court to extend—from Aug. 29 to Sept. 28—the time to file its petition.

“The School Board’s lead counsel, Kyle Duncan, along with his partner Gene Schaerr, is currently engaged full-time in a federal trial, representing the leaders of the North Carolina legislature in litigation brought by the United States Department of Justice and private litigants challenging a state law that requires people to use the public bathrooms, changing facilities, and showers that accord with their biological sex,” the school board’s extension request said.

The “magistrate judge in those cases recently issued a scheduling order with numerous looming deadlines,” it said.

It usually isn't difficult to get a 30-day extension, Gibson, Dunn & Crutcher LLP's Thomas G. Hungar told Bloomberg BNA last year.

Supreme Court Rule 13(5) allows extensions up to 60 days for “good cause.”

The government gets 30- or 60-day extensions as a matter of course, Hungar, who is co-chair of the firm’s Appellate and Constitutional Law Practice Group in Washington and has argued over two dozen cases at the high court, said.

But the Supreme Court denied the school board’s request.

Why? We don’t really know. The one-line docket entry didn’t explain the court’s reasoning.

But the preeminent treatise on Supreme Court procedure may provide some insight.

“The pressure of counsel’s other professional commitments, such as jury trials or other appellate or Supreme Court litigation, is a frequently advanced reason for seeking an extension,” Stephen M. Shapiro et al., “Supreme Court Practice” § 6.II.7.(a) (10th ed. 2013) says.

But, because “a case considered important enough to submit to the Supreme Court should normally be given priority in a lawyer's work schedule, only an aggravated and unavoidable situation of this nature may induce favorable action on an application,” it says.

The treatise pointed to Carter v. United States, 75 S. Ct. 911 (1955), as evidence of that fact.

“It may well be that if counsel are actively engaged in the trial of a cause during the period within which a petition for certiorari must be filed, an appropriate extension of time might be afforded,” Justice Felix Frankfurter said.

“But, generally speaking, barring such exceptional situations, the responsibility of counsel to litigation in this Court should take precedence, on the assumption that the issue sought to be raised here is of such significance as to call for review by this Court,” he added.

So attorneys, when you’re preparing your to-do list, be sure to put your SCOTUS petition on top.

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