The Briefs on the Merits - Bna

Ch. 13.15 <strong>The</strong> <strong>Briefs</strong> on the Merits 745
Court or the Clerk whether such a supplemental brief may be submitted in
ordinary word-processed form. Forty copies reproduced in accordance with
Rule 33.1 should be filed as soon as possible.
Parties may also file additional briefs after the Court has ordered a case
to be reargued, although the rules are silent on this matter. Indeed, the Court
may request the briefing of additional points. 71 Such briefs are not supplemental
in the sense that they are limited to new authorities or materials,
although counsel should not, of course, merely reiterate the contents of the
earlier briefs. It is unclear whether, in the absence of a request from the Court,
leave of Court is required, but filing a motion for leave is the safest course.
Any such motion should be accompanied by the brief, preferably in a single
document, although separate documents are permissible. Counsel should in
any event notify the Clerk’s Office and ascertain when such a brief should be
filed. <strong>The</strong> brief might appropriately be entitled “Brief for Petitioner on Reargument.”
It need contain only sections entitled Summary of Argument and
Argument, and under Rule 24.1(c), tables of contents and authorities if the
brief is longer than five pages.
Ordinarily, when leave is granted to file a brief on reargument, the motion
is granted in full, with no limitations on the arguments that may be addressed
or considered in the accompanying brief. But in Bray v. Alexandria
Clinic, 505 U.S. 1240 (1992), the Court entered just such a limiting order. In
that case, the Court granted leave to file an attached brief on reargument but
only with respect to arguments addressing two specified statutory construction
issues. As to the third and related statutory issue that was addressed in
the brief, the motion for leave to file was denied. 72 Terming the Court’s order
“peculiar,” Justice Stevens in dissent urged that full discussion of the entire
statute at issue should be allowed on the reargument; he indicated that he
intended to read the entire brief in preparing for the reargument and welcomed
comment by the opposing parties “on all issues discussed therein.”
Justice Blackmun joined this dissent, while Justice O’Connor would have
granted the motion “in its entirety.”
Occasionally, a party may wish to file an additional brief after a case has
been argued. <strong>The</strong> party normally wishes to bring to the Court’s attention a
relevant new decision, statute, or other development since the case was argued,
and to analyze and argue the impact of the new matter on the questions
pending before the Court. Rules 25.5 and 25.6 permit a supplemental
brief to be filed after argument in such circumstances but only “by leave of
Court” and only by a party, not an amicus. See Sec. 14.24, infra. <strong>The</strong> party
who wishes to submit a brief following the oral argument must preface the
brief with a motion for leave to file, explaining why the brief should be
entertained at such a late date. Both the motion and the brief will then be
71E.g., Brown v. Board of Educ., 345 U.S. 972 (1953); Illinois v. Gates, 462 U.S. 213 (1983). See Sec.
5.11, supra. In Boyle v. United Technologies Corp., 485 U.S. 931 (1988), the Court permitted the parties
and amici to file supplemental briefs on reargument, limited to 20 pages for parties and 10 pages for
amici.
72<strong>The</strong> Court simultaneously permitted the opposing parties to file a supplemental brief responding
only to the two statutory issues specified by the Court.