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Old January 9, 2013, 11:20 AM   #81
Join Date: October 16, 2012
Posts: 69
I posted this over in MDShooters.

A decision on the merits is not really possible this Term, even with the early filing. 30 days for NY to respond (they could seek an extension but let's assume that they won't). The court won't wait for a reply at the cert stage, so it goes to conference 2 or 3 weeks after the opp is filed, so let's assume opp is filed ~ 2/8/13. Earliest Friday Conference the petition could be considered is March 1 (slim chance for Feb. 22), and after that March 15. If cert is granted, 45 days to file opening brief (mid to late April), 30 days after that for the response (late May or early June). See Rule 25 SCT Rules. A reply is optional but must be filed not later than 2:00pm, a week before argument. The last argument day this Term is April 24. The only way this could be argued this Term is if the Court accelerated the schedule, which they will do but not really that often or to the extent you would need to do so here.

That said, we likely will have a decision on whether to grant the petition this term. The likely conference for this petition is March 1, the last Friday conference this Term is June 20. The SG sat out McDonald and may sit out this case. Either way, the SG is very unlikely to intervene with an amicus brief at the cert stage unless the Court requests the views of the United States. I don't see the Court doing that here, as federal law and policy are not at issue. Even then, standard policy of the SG's office is that the SG will file its views in time for the cert petition to be decided this Term. So I am quite sure we will have a cert grant or denial this Term, probably in March. That leaves plenty of time for briefs to be filed for an argument in October or November.

As to the 4th Circuit in Woollard, I tend to doubt that they will wait for the cert petition, but they would likely wait if the petition was granted, UNLESS they want to have their opinion considered by the SCT in deciding Kachalsky. They can do anything they want.

Last edited by esqappellate; January 9, 2013 at 11:50 AM.
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