ment in his favor, including contentions not passed on by the court below and even contentions rejected by the court below. Langnes v. Green, 282 U. S. 531, 535-539; Walling v. General Industries Co., 330 U. S. 545, 547; cf. McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430, 433-435; United States v. Ballard, 322 U. S. 78, 88. He may not, however, seek to overturn any portion of the judgment without filing a cross-petition for certiorari. Morley Construction Co. v. Maryland Casualty Co., 300 U. S. 185, 191 and cases cited; Le Tulle v. Scofield, 308 U. S. 415, 421-422. As to cross petitions, see p. 192, infra.

The Argument in the brief in opposition should answer both the Reasons for Granting the Writ and the Argument in the petition and supporting brief. The suggestions as to the nature of these sections of the petition apply to the brief in opposition as well. Respondent's counsel should remember that he is seeking to induce the Court to deny a petition for certiorari, not to win a case on the merits. He should accordingly try to convince the Court that there is no conflict of decisions, if there isn't, and that the question is not important, if it isn't. He should emphasize such factors as that the decision below turns upon its own facts, and that it will affect few others than the litigants, if such be the case. He may also legitimately point out that the presence of other meritorious arguments on his side shows that the decision below is correct without regard for the question sought to be raised by the petition, and that as a result, the Supreme Court would be likely not to reach the point of alleged importance or conflict. And, in the usual case, he should also seek to convince the Court that the decision below was right, for this may in itself lead to a denial of the petition.

Brevity in the brief in opposition is just as desirable, and for the same reasons, as in the petition for certiorari.

In some situations a short form memorandum may be filed by respondent, without subdivision under the various headings referred to above. Where there is a clear conflict of decisions, or where the question is undoubtedly of such importance as to need a Supreme Court determination, the respondent may have no reasonable basis for opposing certiorari. A brief statement of the reasons why he does not oppose is all he need file-or he may notify the Clerk that he waives the right to file an opposing brief. A respondent may also choose to waive the right to oppose a petition frivolous upon its face. In some types of cases a very short statement of pertinent facts and argument will clearly demonstrate that the case is not of the sort to be reviewed by the Supreme Court; the Court will accept a short memorandum, without headings, in such cases. This form would seem appropriate when the Court has previously denied certiorari or relief on the merits to the same party in the same transaction, or to other parties in substantially identical circumstances, or when the petitioner's contentions are plainly insubstantial.

Where a petition is filed out of time, or there is other clear jurisdictional defect, or where the case has become moot or abated, respondent may file a short statement calling attention to such fact. For form, see p. 378, infra.

A respondent may not move to dismiss a petition for certiorari. All his objections, jurisdictional and others, should be asserted in his brief in opposition. Rule 7 (3). After a writ of certiorari has been granted, a respondent may move to dismiss the writ for reasons not already advanced in opposition to the granting of the writ. Rule 7 (3), 3rd paragraph. Such a motion is justifiable only when there are new, or newly discovered, facts which indicate that the writ should not have been granted.

Rule 38 allows respondent thirty days to file the brief in opposition with the Clerk. But this period is not jurisdictional. It may be enlarged by the Court or a Justice. An application for enlargement should be filed with the Clerk, who will submit it to the Court or appropriate Justice. See form, p. 378, infra.

The brief in opposition must be served on the petitioner, and proof of service filed with the Clerk with the brief. Although an affidavit of service will be accepted, an acknowledgement of receipt by opposing counsel is greatly preferred by the Clerk, so that all doubt as to the fact and date of receipt will be removed. If counsel to be served is located too far away to permit personal service and the obtaining of an immediate acknowledgement of service, an affidavit may be filed with the brief, and an acknowledgement obtained by mail filed later. It is the duty of counsel receiving the brief promptly to return an acknowledgement of service to the sender.

L. Reply briefs

The petitioner may file a reply brief to the brief in opposition. A reply brief is usually not needed unless the brief in opposition has brought up new matter of some significance not adequately treated in the petition. A reply is unnecessary merely to correct minor errors of little consequence.

Rule 38 (4) (a) provides:

"Timely reply briefs will be considered but distribution under this rule shall not be delayed pending the filing of such briefs."

To do any good, the reply brief must be submitted in time for the Court to read it before it acts on the petition. Counsel wishing to file a reply brief should notify the Clerk immediately, and ascertain from the Clerk when the case will be submitted. Except during the summer recess, this will normally be from

one to three weeks after the brief in opposition has been filed, depending on the schedule of the Court's conferences. As to this, see below and pp. 125-6, supra.

M. What the Court does with the petition

30

The petition, record, and brief in opposition are distributed by the Clerk to the Court shortly after the brief in opposition is filed. The Court usually takes up the case at the next Saturday conference, unless the conference is in the same week, in which case the matter is deferred until the following conference. The Court announces its ruling on the petition on the Monday following the conference at which the matter is decided. The Clerk promptly notifies counsel for the parties.

N. Petitions for rehearing after certiorari is denied

Rule 33, as amended October 13, 1947, allows petitions for rehearing to be filed in specified circumstances, and within fifteen days after certiorari has been denied. This subject is considered in Chapter XII, pp. 321-331, infra, which deals with rehearings generally. It is sufficient to say here that too many such petitions are filed, most of them without any basis except the attorney's belief that he must grasp at any straw in order to avoid losing his case, and that the purpose of the amendment to Rule 33 was greatly to reduce the number of petitions for rehearing.

30 This subject is discussed more fully in Chapter IV, pp. 125-6, 135-8,

VI

PROCEDURE ON APPEALS

The cases over which the Supreme Court has jurisdiction by appeal are described in Chapters II and III, supra. The procedure on appeals described in this chapter governs all types of cases coming to the Supreme Court by way of appeal-appeals from three-judge federal district courts (28 U.S.C. §1253), from ordinary district courts in certain antitrust cases (15 U.S.C. §29) and cases under the Interstate Commerce Act (45 U.S.C. §45), when a federal statute has been held unconstitutional (28 U.S.C. §1252), and under the Criminal Appeals Act (18 U.S.C. (1948) §3731), from the federal courts of appeals (28 U.S.C. $1254 (2)), from state courts (28 U.S.C. §1257 (1) (2)), and under special statutes allowing appeals as of right in particular cases (see p. 44, supra).

The procedure in all of these classes of cases is the same, except for direct federal criminal appeals which are governed by the Federal Rules of Criminal Procedure; the difference between the procedure in such cases and that in other appeals is treated at pp. 240-2, infra. In the few cases arising under special statutes, the provisions of the particular statute will, of course, govern. But, except as such statutes otherwise provide, the general procedure here described is applicable.

The primary theoretical difference between cases coming to the Supreme Court by way of appeal and those which come by way of certiorari is that in the former the Court is supposed to be obligated to review the judgment of the lower court, whereas in the latter review is discretionary. Even in cases coming by appeal, however, which currently comprise about seven percent of the Court's business, more than half of the