Since even before I was licensed to practice law, I’ve chronicled the absurdity that is filing a case with the U.S. Supreme Court. From requiring those dropping off papers to place their documents in garbage bags, to requiring 40 copies of all documents in specialized and expensive “booklet format,” to rejecting a filing for having an “insufficiently thick cover,” instead of making justice as accessible to all as possible, this court has made practice before it the ultimate hoop-jumping experience.
All of the issues above are correctable; that is, if you do it wrong, you just need to fix it. But at the end of last year, the Supreme Court caught me with one that is not only uncorrectable, but not specified in their rules, and I post this both as a plea for the high court to get their shit together as well as to serve as a warning to other attorneys: the Supreme Court does not count “electronic filing” as “filing” for the purpose of meeting a deadline for a petition for certiorari.
Sure, electronic filing is mandatory. And sure, the Web site to submit your electronic filing calls itself “Electronic Filing System” and the address of the Web site is file.supremecourt.gov. But please be forewarned: what you do at this site does not count as a “filing.”
Of course, in order to submit your documents, you push a button labeled “New Filing.” And of course, when you complete the process, it tells you, “Your electronic filing was submitted on [date] [time].” But do not be confused: you have not filed anything.
You may also have thoroughly read each and every one of the court’s rules and guidelines and found nothing to indicate that even though you have successfully transmitted a document to the court, the court will not treat it as filed. This is true even if, as an experienced litigator, you know that literally every other federal court in this great nation considers a document as filed for deadline purposes at the earlier of when the court receives either the paper or electronic version, and that failure to file paper copies when required is a minor, correctable breach of rules rather than a jurisdictional time bar-creating nightmare. But you clearly do not understand that the Supreme Court is special, so not only must you disregard your experience with other federal courts, you must make peace with the fact that some rules are just not meant to be written.
Unfortunately, an explainer-guide like the above did not exist before this post, so when I e-filed a petition with the Supreme Court on the night of the filing deadline and saved a filing confirmation, I took comfort in the court’s Electronic Filing Guidelines, which state that the electronic and paper copies must be filed “at or near the same time.” So, “the morning after the electronic filing” seemed to me to be “near the same time” for the purpose of filing paper copies, but the Clerk of the Supreme Court rejected my filing for missing a jurisdictional time bar because, I was told for the first time, regardless of whether or when you electronically file, the only date that counts for meeting a deadline is the date the paper copies are sent.
Of course, there’s no law actually requiring the court to consider this a jurisdictional miss, since Congress has not precluded the court from “counting” the electronically filed version, but if the Supreme Court can disregard you, it, quite simply, will. My motion to file the petition “out-of-time” was denied yesterday without comment.
It’s not just me. Attorneys are regularly caught by this absurd rule, as evidenced by motions on the court’s docket to hear their petitions “out-of-time.” I was able to find at least 3 attorneys who had this problem in 2022 alone, and probably many more: since the Supreme Court (as best I can find) has never granted such a motion, I would imagine most attorneys don’t bother to file one due to the embarrassment of publicly outing themselves as having missed a deadline. I’m assuming this is also why a post like this doesn’t yet exist. It is never the highlight of an attorney’s day to tell their client — let alone any member of the public who cares to read the docket, or their blog — that a case is over because a deadline was missed, and it is not the highlight of mine. But the Supreme Court’s refusal to even put a clarification in their own rules, or a tiny note on their e-file portal, despite this regular occurrence, is a failure for which the legal community deserves warning and SCOTUS deserves shaming.
I joined this profession to help people get much needed justice, and although I wasn’t able to get it for my client this time (an unfortunate reality of civil rights litigation sometimes, even when a case is not snagged by procedural boobytraps), I hope this guide helps at least one more person get justice, and I know it will help more than one attorney avoid pulling their hair out when receiving a nastygram from the clerk after thinking they were in the clear.