Supreme Court Practice

question means merely that the questions raised have too little merit to warrant oral argument in the Supreme Court. An appellee making such a contention should set forth sufficient by way of fact and argument to convince the Court that appellant's points are without substance. It may also help him if he can show that the point is not of any importance, although this alone would be insufficient.

In many cases, appellee cannot foretell whether the Supreme Court will consider appellant's contentions to be insubstantial. Where there is any reason to believe that the Court might be willing to affirm without argument, it is probably advisable for an appellee to present his side of the case in an opposition to jurisdiction or a motion.25 In many appeals in which appellee has not filed any response to the Jurisdictional Statement, the Court dismisses or affirms on its own motion. Undoubtedly there are other cases which the Court will think raise substantial questions if nothing but appellant's Jurisdictional Statement is before it; a statement by appellee might convince the Court that the questions were so insubstantial as not to justify hearing argument. Sometimes appellee's position will be adequately presented in the opinion below, which is required to be attached to the Jurisdictional Statement.

It is clear from the above that the important thing is for appellee to put before the Court his contentions as to jurisdiction, if any, and the merits, if there is reason to believe the Court may not think argument necessary. It doesn't matter greatly whether the contentions appear in a document entitled

25

Deputy Clerk Harold B. Willey has written in this connection:

"Paragraph 3 of Rule 12 permits the filing of an opposition to the jurisdictional statement or a motion to dismiss or affirm and you may prepare this paper in the same manner as you would oppose a petition for certiorari. You are familiar with the record and it is your duty to your client and to the Court to point out known jurisdictional defects or to show that the appeal is not substantial." Willey, Jurisdictional Statements on Appeals to U. S. Supreme Court, 31 Am. Bar Ass'n. J. 239, 240 (1945).

Opposition to Jurisdictional Statement, Motion to Dismiss, or Motion to Affirm-or any combination of these titles. If the material is before it, the Court will determine what should be done with the case. All that can be surmised is that the Court may be more likely to dismiss or affirm if a formal motion to that effect is submitted. But, as has been noted, it often does the same thing without any request at all from appellee.

The Court has at times treated want of a substantial question as a jurisdictional defect, and dismissed appeals on that ground. See p. 215, supra. This made it difficult, if not impossible, to tell whether appellee should seek dismissal or affirmance on the ground that the question is insubstantial. Probably for that reason the use of a single "motion to dismiss or affirm" became common. It is believed that at present the Court generally follows the practice of dismissing for lack of jurisdiction in the technical sense, and of affirming when there is jurisdiction but the question is deemed insubstantial except that in cases from state courts lack of a "substantial federal question" is treated as a basis for dismissal. It would seem appropriate for appellee's counsel to be guided by this differentiation in deciding which motion to use. If the defect is clearly jurisdictional, the motion should be to dismiss; if clearly relating only to the merits, the motion should be to affirm; if not too clearly one or the other exclusively, as when claiming lack of a substantial federal question, the motion should be "to dismiss or affirm."

Customarily, a statement opposing jurisdiction is coupled with one or the other of these motions, although often the document is merely entitled "Motion" for the relief requested. Probably the only time an appellee would not use or include a motion would be when he wished merely to call the Court's attention to a jurisdictional problem without pressing it.

H. Appellant's reply to motions to dismiss or affirm

When a motion to dismiss or affirm is served upon appellant, Rules 7 (3) and 12 (3) allow him to file in the Supreme Court forty printed copies of a brief opposing the motion within twenty days, except that he has twenty-five days when his counsel resides in the States of California, Oregon, Washington, Nevada, Idaho, Utah, Arizona, New Mexico, Colorado, Wyoming, and Montana, or in an outlying possession.

The Rules do not specifically provide for such a reply brief to a statement opposing jurisdiction not accompanied by a motion. But it is likely that the Court would accept a reply to such a statement if it was submitted in time-before the Jurisdictional Statement and opposing statement were printed by the Clerk and distributed to the Court. Such a reply should conform to the provisions of Rule 7 (3) governing replies to motions to dismiss.

Whether a reply brief should be submitted will depend in large part upon the extent to which appellant has anticipated appellee's contentions in his Jurisdictional Statement. If the former does not adequately present appellee's position, as is often true when the Jurisdictional Statement does not go into the merits of the case, a reply is probably advisable.

I. Direct criminal appeals

The rules governing the taking of direct criminal appeals have already been simplified by the Supreme Court. Rules 37-39 of the Federal Rules of Criminal Procedure are controlling. "Petitions for allowance of appeal, citation, and assignments of error" are expressly abolished. Rule 37 (a).

The only direct criminal appeals allowed from district courts to the Supreme Court are those by the Federal Government under the Criminal Appeals Act (18 U.S.C. §3731), the

contents and meaning of which have been discussed in Chapter II, pp. 23-6, supra. All other federal criminal appeals go first to the courts of appeals, and to the Supreme Court only by petition for certiorari.

Time to appeal and order appealed from. The appeal must be taken "within 30 days after the decision or judgment has been rendered." Whether the "decision or judgment" is a clerk's docket entry on the day of the opinion or a written order signed by the judge apparently varies from district to district, and perhaps from case to case. See United States v. Hark, 320 U. S. 531, quoted at p. 141n., supra. A resolution of this problem in the Supreme Court Rules or the Criminal Rules would doubtless be helpful.

Notice of appeal. To take a direct appeal to the Supreme Court from a district court, appellant (the Government) must, within thirty days of the order appealed from (see p. 202, supra), file with the clerk of the district court a typewritten notice of appeal in duplicate. Rule 37 (a) states that:

"The notice of appeal shall set forth the title of the case, the name and address of the appellant and of appellant's attorney, a general statement of the offense, a concise statement of the judgment or order, giving its date and any sentence imposed, the place of confinement if the defendant is in custody and a statement that the appellant appeals from the judgment or order." For form, see p. 399, infra.

Jurisdictional Statement. Rule 37 (a) also provides that:

"If the appeal is directly to the Supreme Court, the notice shall be accompanied by a jurisdictional statement as prescribed by the rules of the Supreme Court.” The nature of the required Jurisdictional Statement is the same as in other appeals. See pp. 213-25, supra.

The record. Appellant should also "promptly" serve upon appellee and file with the Clerk a designation of the portions of