A REPORTER’S GUIDE

TO APPLICATIONS
Pending Before
The Supreme Court of
the United States
 A Reporter’s Guide to
Applications Pending Before
The Supreme Court of the
United States

Prepared by the Public Information Office

Supreme Court of the United States.

Business hours: 9 a.m.–5:30 p.m.

202-479-3211 (press 1)

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 Table of Contents
Page
A Reporter’s Guide to Applications ............................ 11
Progress of a Capital Case ............................................ 17
Questions Most Often Asked by Reporters ............... 11
Justices and Judicial Circuits ........................................ 17
 A Reporter’s Guide
To Supreme Court
Procedure For Applications
2 A Reporter’s Guide to Applications

An application is a request for emergency ac-

tion addressed to an individual Justice. Although
most applications involve routine matters such
as requests for extensions of the time limit for fil-
ing papers, some—such as applications for a stay of
execution or injunctive relief in a dramatic case—draw
the attention of reporters. These newsworthy applica-
tions usually concern an effort to buy time, to maintain
the status quo—to stay the implementation of a lower
court order—pending final action by this Court (or ­under
certain circumstances, a lower court).
Applications are addressed to a specific Justice,
according to federal judicial circuit. The United States
is divided into 13 federal circuits, with each Jus-
tice assigned to a specific circuit or circuits (see page
19).
Case law has established four general criteria that
the applicant normally must satisfy in order for the Court
to grant a stay. They are:
1. that there is a “reasonable probability” that four
Justices will grant certiorari, or agree to review
the merits of the case;
2. that there is a “fair prospect” that a majority of
the Court will conclude upon review that the
­decision below on the merits was erroneous;
3. that irreparable harm will result from the denial
of the stay;
4. finally, in a close case, the Circuit Justice may
find it appropriate to balance the equities, by
 A Reporter’s Guide to Applications 3

­e xploring the relative harms to the applicant

and respondent, as well as the interests of the pub-
­lic at large.
Applications are typically handled on “paper;” that is,
there are normally no hearings or oral arguments. Ap-
plications and any related papers submitted to the Court
are filed with the Clerk’s Office and forwarded to the
Justices. A Justice need not be physically present in
the Court building in order to act on an application,
although there are instances in which the Circuit Jus-
tice cannot be reached. In that case, the application is
referred to the next junior Justice.
The Circuit Justice may act on an application alone
or refer it to the full Court for consideration. The fact
that an application has been referred to the full Court
may not be known publicly until the Court acts on
the application and the referral is noted in the Court’s
­order. Applications for stays in capital cases are o ­ ften,
though not always, referred to the full Court. If an
application is referred, the Justices do not meet of­fi­­-
cially or publicly, but confer, sometimes by phone, or
through the exchange of memoranda.
Once the full Court has acted on an application, the
application is closed and there is no further opportunity
to request the same relief.
If the full Court acts on an application, five Justices
must agree in order for the Court to grant a stay, but
the votes of only four Justices are required to grant
­certiorari. Quite often an application will request a
stay from the Court pending the timely filing and dis-
position by this Court of the party’s petition for writ
of certiorari.
There are several possible scenarios for the dispo-
sition of an application:
4 A Reporter’s Guide to Applications

• A Justice may simply deny without comment or

­explanation. If the Circuit Justice denies an appli-
cation, there will often be no separate order issued.
The denial will be reflected on the public docket.
• If a Justice acts alone to deny an application, a
­petitioner may renew the application to any other
Justice of his or her choice, and theoretically can
continue until a majority of the Court has denied
the application. In practice, renewed applications
usually are referred to the full Court to avoid such
a prolonged ­procedure.
• A Justice may call for a response from the ­op­­po-
sition before reaching a final decision. Such
responses are usually due by a date and time
certain. The Justice may grant an interim stay
pending receipt and consideration of a response.
• A Justice may grant. If an application is granted by
an individual Justice, or if the full Court acts upon
one, its disposition is indicated by a written or-
der or sometimes, an opinion.
An order granting an application will indicate
how long the order will remain in effect—usually
until the Court acts on the petition for writ of cer-
tiorari. In fairly standard language, the­ ­­order
will often go on to state that if the petition is
­denied, the stay will automatically terminate, but
if the Court grants full review, the stay will re-
main in effect until the Court hands down a deci-
sion on the merits and the mandate or­­judgment
is ­issued.
• If a Circuit Justice, acting alone, grants an­
application, the other side may file a motion to
the full Court to vacate that Justice’s stay. As
 A Reporter’s Guide to Applications 5

a practical matter, these are rarely, if ever,

granted.
Sometimes the application for a stay and the peti-
tion for writ of certiorari are filed simultaneously and
acted on by the Court at the same time.
Sometimes an order will be accompanied by state-
ments or opinions by Justices writing in support of, or
dissent from, the action of the Court. If the opinion is
written by a Circuit Justice acting alone, it is called an
In-Chambers opinion.
Applications may be filed with the Clerk’s Office
­after regular business hours, and may be acted on by
the Court at any time. Once the application is accepted
for filing by the Clerk’s Office, an electronic version is
made available on the Court’s public docket. Copies
of applications are made available to the Public Infor-
mation Office by the Clerk’s Office upon their receipt.
The public affairs specialist is the primary press contact
for information on ­applications.
If an application is filed or acted on after regular
business hours, the public affairs specialist will be
notified by the Court, and may be contacted at pio@su-
premecourt.gov. The Public Information Office business-
hours number is 202-479-3211 (press 1).
The Public Information Office maintains a list of press
names, email addresses, and phone numbers for applica-
tions. We suggest that press who wish to be included on
a “call-out” list for a specific application touch base with
the Public ­Information Office.
“Call-out” is provided by the Public Information Of-
fice on a limited basis, usually upon request by a
member of the press.
If you are following a particular application, you may
alert the public affairs specialist and ask to be called when
6 A Reporter’s Guide to Applications

it has been decided. Similarly, if you are aware of an

application likely to be filed with the Court, we will be
happy to notify you when the papers are filed.
Progress Of A
Capital Case
8 A Reporter’s Guide to Applications

The following has been prepared by the U. S. Supreme

Court Clerk’s Office as a basic guideline for tracking a ­capital
case through the judicial system.

1. Individual is found guilty of a capital offense.

2. In a separate proceeding defendant is sentenced
to death either by a jury or a judge.
3. Direct appeal on the merits. Grounds may be any
legal or constitutional error arising at the trial.
The appeal is limited to the trial record.
a. A direct appeal of the conviction based on the
case through the state courts (in some states an
appeal is automatic and mandatory).
b. A direct appeal of the sentence to death. State
supreme court, or court of last resort, may con-
duct a proportionality review to determine
whether the sentence is proportionate to sen-
tences imposed in similar cases.
c. A petition for certiorari, seeking direct review,
filed in the U. S. Supreme Court (the Supreme
Court will only hear cases where it believes
a substantial f­ederal ­issue is raised).
4. Execution date may be set. The warrant may be
issued any time after the state supreme court­, or
court of last resort, a­ ffirms the death sentence.
5. Applications for a stay of execution: even if ap-
peals are pending, an application for a stay or
 A Reporter’s Guide to Applications 9

modification of the execution date is required to

stop an impending execution. After an applica-
tion for a stay has been denied by ­either the high-
est state court or a federal court of­a­ ppeals, the
application may be filed with the U. S. Supreme
Court.
6. State petition for a writ of habeas cor­p us
(post-conviction relief). Review is not limited
to the trial record. The petitioner may raise other
­issues such as newly discovered evidence, and
state or federal constitutional claims, includ-
ing i­neffective assistance of counsel at the trial.
(where the petition is filed varies from state to
state):
a. File petition in the state trial court.
b. File the petition in the state court of appeals
for the district where the trial occurred.
c. File the petition in the highest state court.
d. File a petition for Certiorari with the U. S.
Supreme Court.
7. Federal habeas corpus proceedings. This is
a civil remedy which permits a person in cus-
tody to c­ hallenge the constitutionality of his
or her conviction or sentence. The court re­-
views whether the ­p eti­­tioner is in custody in
­violation of the Constitution or laws or treaties of
the U. S.
a. District Court: (jurisdiction in both the district
where the petitioner is confined and the district
of the conviction):
10 A Reporter’s Guide to Applications

1. May stay the state court proceeding

(may be automatic when a petitioner seeks
habeas relief for the first time in federal
court).
2. May summarily dismiss petition.
3. May order an evidentiary hearing.
b. Court of Appeals: State prisoners must obtain
a certificate of appealability from the district
court, a circuit judge, or circuit justice to appeal
a decision to the court of appeals.
c. Supreme Court: defendant may file a Petition
for Writ of Certiorari.
8. May repeat steps 5, 6, and 7 with subsequent­
petitions. However, a U. S. court of appeals must
authorize the district court to consider a second
or successive federal habeas petition, and the
grant or denial of such authorization is not re-
viewable on certiorari.
9. A death row inmate may file an original habeas
corpus petition in the U. S. Supreme Court along
with an application for stay of execution.
Questions Most Often Asked
By Reporters
12 A Reporter’s Guide to Applications

Q: How much notice does the Court usually have

that an execution is imminent and an application for
a stay of execution may be filed?
A: The Clerk’s Office distributes a list of scheduled
executions on a weekly basis to the Justices’ cham-
bers. Many on the list have had cases at the Supreme
Court before, and copies of those case filings are made
­available to chambers. Lower courts will notify the
­S upreme Court of their decisions and will transmit
copies of their rulings as they are announced so that
the Justices can be kept informed. Meanwhile, legal
counsel will usually call the Clerk’s Office in advance
of the scheduled execution to “check in,” to be advised
of filing procedures, and to advise the Court whether
he/she intends to appeal to the Court.

Q: Who are the best contacts for guidance on the

facts of a particular case? Where can copies of ­papers
filed with the Court be obtained?
A: The Public Information Office staff at the Court
are the best contacts for information on what has been
filed and when, as well as for updates on status. For
more substantive guidance on the facts of a case, the
best ­contacts are usually the lawyers handling the case.

Q: How is it determined which Justice will handle

an application?
A: The country is divided into 13 federal judicial
­circuits and each Supreme Court Justice is assigned
one or more of these circuits. The Justices decide
among themselves who will be responsible for which
circuits, and those assignments are announced in a
 A Reporter’s Guide to Applications 13

written order of the Court. The assignments usually

change only when the Court’s membership changes
(see page 19).

Q: What if that Justice is unavailable?

A: The application goes to the next Justice junior in
seniority; the Chief Justice ranks first, followed by Justices
Clarence Thomas, Samuel A. Alito, Jr., Sonia Sotomayor,
Elena Kagan, Neil M. Gorsuch, Brett M. Kavanaugh, Amy
Coney Barrett, and Ketanji Brown Jackson.

Q: What might TV be able to capture on camera

when a “big” application is pending, or lawyers are
about to file papers with the Court?
A: Not much. The fact is, most after-hour filings
are either delivered by messenger or emailed to the
Court. Since cameras are not permitted inside the
building, unless a lawyer involved in a case has indi-
cated he/she will be available to answer questions from
the press outside, there’s nothing to see. Please know
that exterior filming is permitted on the public sidewalk
only in front of the Court building.

Q: How can a reporter find out when an applica-

tion has been acted on by the Court, and what a­ ction
the Court took, particularly after hours?
A: During business hours, call the Court’s Public
Information Office: 202-479-3211 (press 1). You may also
reach the office by emailing [email protected]. If an
opinion or court order is released, the Public Information
Office will email it to members of the press upon request.
14 A Reporter’s Guide to Applications

Q: Will anyone at the Court speak on camera or

agree to be recorded for radio regarding a Court
­decision?
A: We follow the example of the Court. Sorry, the
answer is “No.”

Q: Does the Court have to act within certain time

constraints when considering an application?
A: There is no law or rule requiring the Court to act
by a time certain, but as a practical matter, an applic-
ation by definition implies a deadline of some sort.

Q: Will there always be something in writing

r­ e­leased when a Justice or the Court acts on an
­application?
A: When a Justice denies an application, there is
usually nothing in writing. When a Justice grants an
application, or if the full Court acts on an application,
there is usually at least an order setting out the terms
of the action, and sometimes there will be separate
statements or opinions.

Q: How many petitions for writ of certiorari are

filed with the Court each term? How many are­
granted full review? How long does a party have to
file a petition with the Court?
A: The Court receives approximately 5,000-6,000
petitions for a writ of certiorari each Term. The Court
grants and hears oral argument in about 60-70 cases.
A petition seeking review of the final judgment by the
court of last resort below must be filed within 90 days
 A Reporter’s Guide to Applications 15

of the entry of that judgment, although that time can be

extended by up to 60 days.

Q: How long does it take the Court to act, once a

petition has been filed?
A: On the average, about six weeks. Once a petition
has been filed, the other party has 30 days within which
to file a response brief, or, in some cases waive his/
her right to ­respond. Once the 10 day period for receiv-
ing a reply brief has passed, the case is circulated to the
Justices and placed on a conference list, for consider-
ation at one of the Justices’ private conferences. Cop-
ies of conference lists are available to news report-
ers for their convenience ONLY, and not for publica-
tion. Cases appearing on a conference list may reason-
ably be expected to appear on the following Mon­day’s
Order List (the announcement of dispositions in pend-
ing cases) although this is not always the case. If a case
does not appear, it will be relisted for consideration at
a future conference. If the petition is granted, the peti-
tioner has 45 days within which to file a brief on the
merits, and the respondent has 30 days within which
to file the brief in response, for a total of about 75 days.
The petitioner may then file a reply brief up to 10 days
prior to the date oral argument has been scheduled.

Q: Are cases granted during a term always heard

that same term?
A: No. Cases granted after mid-January are typically
carried over until the next term begins the ­following
October, unless the case is expedited by the Court.
16 A Reporter’s Guide to Applications
Justices of the Supreme Court
of the United States and
Judicial Circuits
18 A Reporter’s Guide to Applications

John G. Roberts, Jr., nominated by President Bush,

took his seat as Chief Justice of the U. S. September
29, 2005.

Clarence Thomas, nominated by President Bush,

took his seat as an Associate Justice October 23, 1991.

Samuel A. Alito, Jr., nominated by President Bush,

took his seat as an Associate Justice January 31, 2006.

Sonia Sotomayor, nominated by President Obama,

took her seat as an Associate Justice August 8, 2009.

Elena Kagan, nominated by President Obama, took her

seat as an Associate Justice August 7, 2010.

Neil M. Gorsuch, nominated by President Trump, took

his seat as an Associate Justice April 10, 2017.

Brett M. Kavanaugh, nominated by President Trump,

took his seat as an Associate Justice October 6, 2018.

Amy Coney Barrett, nominated by President Trump,

took her seat as an Associate Justice October 27, 2020.

Ketanji Brown Jackson, nominated by President Biden,

took her seat as an Associate Justice June 30, 2022.
 A Reporter’s Guide to Applications 19

Circuit Justice States Included Clerk’s Office

Federal Roberts Nationwide Washington
D. C. Roberts District of Columbia Washington
First Jackson Maine, New Hampshire, Boston
Massachusetts, Rhode
Island, Puerto Rico
Second Sotomayor New York, Vermont, New York
Connecticut
Third Alito New Jersey, Philadelphia
Pennsylvania, Delaware,
Virgin Islands
Fourth Roberts Maryland, West Virginia, Richmond
Virginia, North Carolina,
South Carolina
Fifth Alito Mississippi, Louisiana, New Orleans
Texas, Canal Zone
Sixth Kavanaugh Ohio, Michigan, Cincinnati
Kentucky, Tennessee
Seventh Barrett Indiana, Illinois, Chicago
Wisconsin
Eighth Kavanaugh Minnesota, Iowa, St. Louis
Missouri, Arkansas,
Nebraska, North Dakota,
South Dakota
Ninth Kagan California, Oregon, San Francisco
Nevada, Montana,
Washington, Idaho,
Arizona, Hawaii, Alaska,
Guam
Tenth Gorsuch Colorado, Wyoming, Denver
Utah, Kansas, Oklahoma,
New Mexico
Eleventh Thomas Alabama, Florida, Atlanta
Georgia
Rev. 11/2022