Extension of Time

Today the Supreme Court granted the Solicitor General a one-month extension to file his response to the cert. petition on the individual mandate litigation decided by the Sixth Circuit. The Government’s response is now due at the end of September. This will delay the Court’s consideration of the petition until the end of October (at best).

This may be a stalling tactic by the Administration (Will they also file for en banc review in the Eleventh Circuit to keep that away from the Court?) Or it may reflect uncertainty about the position that the United States should take.

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10 Responses

  1. anon says:

    Or it may be standard practice for the SG to seek an extension of time in response to a cert petition. Indeed, it is.

  2. Gerard Magliocca says:

    Yes, but this is not a standard case.

  3. anon says:

    I guess what I’m trying to say is, it makes sense to try to read into actions that deviate from the norm in a non-standard case. But when the SG does what the SG always does, there probably isn’t much to say. That said, I understand that the case is a big one, and people may be interested to hear where it is.

    If I were in the SG’s position, and a circuit split developed during the period in which I was drafting a cert op, I would probably ask for more time to rewrite my brief. That’s if I was working alone and didn’t ask for extensions all the time. But the SG will have had input from all levels and many different departments on this one, both before and after the 11th Circuit’s contrary judgment, so the need for time is all the more obvious. I really doubt it’s strategic.

  4. Gerard Magliocca says:

    At a minimum, it’s a fair bet that the response to the petition is not “Yes, please take the case now.”

  5. Shag from Brookline says:

    Gerard, isn’t the Tenth Justice entitled to the court-esy of a short extension? And exactly what is your definition of a “standard” case for the Court that pronounces “Equal Justice Under Law”?

  6. Gerard Magliocca says:

    Oh, I’m not saying he wasn’t entitled to an extension. It’s just that he could have said that — “We think the Court should resolve this circuit split now.” He didn’t say that, which is telling.

    Not all cases are equal. Some have political implications while most do not.

  7. anon2 says:

    As someone else noted, this is standard practice for the SG. Even if they were going to file a “please take this case now” petition, they’d ask for more time. The petition, regardless of what it ultimately says, will have to not only go through the normal brief writing process, but will have to be vetted by the SG himself, if not looked at by the AG. All of this will take time, especially because people like the SG and AG have a million things going on. There’s really nothing to be learned from their request.

  8. Shag from Brookline says:


    “Not all cases are equal. Some have political implications while most do not.”

    is noted but I am in the process of reading Justice Breyer’s “Making Our Democracy Work” and at his suggestion before reading the chapters in “Part II Decisions That Work” i read his “Appendix B Background: The Court” about the 8,000 Cert. Apps. annually with about 80 cases being taken for full hearings: “Thus those cases that the Court fully hears amount to a virtually invisible tip of a giant iceberg.” Then Breyer says: “These eighty cases, while few in number, are important in kind.” So let’s not make an iceberg out of a short extension with a “coulda, shoulda.” When a Pres. Perry nominates Gerard as S.G., perhaps the Tenth Justice may move up in rank.

    Regarding this case having political implications, perhaps Bush v. Gore might serve as a precedent (although the majority emphasized its limitations). That may be the goal of those who from 1/20/09 on want to limit Obama to one term, regardless of the impact upon the economy with their opposition to everything Obama.

  9. Jim says:


    I guess the question of the day/week/month has to be “Will the government seek en banc review or not”. What is the generally held belief among the cogniscienti on whether or not that is going to occur?

  10. Gerard Magliocca says:

    I haver no cognisciental idea.