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WASHINGTON � Every lawyer’s nightmare � inadvertently missing a court filing deadline � has come true for Roy Englert Jr. Adding to the pain is that the court whose deadline he missed is the Supreme Court, where such mistakes tend to get noticed more than they might elsewhere. But if there is any consolation, it is this: As competitive as the Supreme Court practice is, it is collegial enough that some of Englert’s brothers at the bar have rallied to his side. Former Solicitors General Charles Fried and Seth Waxman have filed a brief asking the court to clarify its rule that Englert ran afoul of and, in the process, to accept his out-of-time petition. As the brief, written by Fried, notes, “There but for the grace of God go I.” The court will consider the issue at its conference next Monday. Englert, a veteran Supreme Court practitioner and partner at Washington’s Robbins, Russell, Englert, Orseck & Untereiner, was hired by Northwest Airlines to file a petition challenging a decision by the Sixth Circuit U.S. Court of Appeals that sided with Spirit Airlines in a long-simmering predatory pricing dispute. The suit originally filed by Spirit has not gone to trial, but the appeals court decided some significant issues, about what a jury needs to consider, in Spirit’s favor. On April 17 the office of Northwest’s Sixth Circuit counsel alerted Robbins, Russell that the circuit court had denied a petition for a rehearing of the case. For Englert that meant he had 90 days to file a petition with the Supreme Court. He did just that on July 17, and the case of Northwest Airlines v. Spirit Airlines was given the docket number 06-77. But on July 20 a Supreme Court case analyst in the clerk’s office called Englert with bad news; according to the Sixh Circuit, the denial of rehearing was actually issued April 13, not April 17, making the petition to the Supreme Court several days late. Since Englert had not requested an extension during the 90-day period � extensions of up to 60 days are allowed by statute � the petition was deemed out of time. The case was yanked from the docket, meaning the Sixth Circuit ruling would stand. Not a good result for Northwest. The next day, Englert filed a motion asking the court to direct the clerk to accept the petition out of time, an action reported first by Scotusblog, a weblog that focuses on Supreme Court developments. Englert took full responsibility for the error but described it as “classic excusable neglect” that did not prejudice any party in the case. While recognizing that the court has been strict about enforcing its deadlines, Englert argued that nothing in the relevant statutes precludes parties from seeking an extension after the 90-day deadline has passed. “The court has the freedom to take into account all circumstances,” Englert argued in the motion, “in exercising its discretion whether to accept the petition, but the court’s power to do so is beyond reasonable question.” In an interview, Englert says, “This is not a happy moment in my life.” He adds, “I have never missed a court deadline like this in 25 years of practice.” Englert acknowledges that “courts have to have deadlines,” and he understands the clerk’s interest in treating all petitioners equally. “But the court has been taking an unduly harsh attitude, without Congress saying it has to.” Englert declined to say what Northwest’s reaction to the situation has been, and efforts to obtain a comment from the company were unsuccessful. Spirit’s lawyers also did not return messages, and they have not filed a reply to Englert’s motion � nor are they required to. In the lawsuit, Spirit claims Northwest illegally undercut its ticket prices in the 1990s to drive Spirit out of the Boston and Philadelphia markets. Meanwhile, Englert has sought out some top-drawer amicus curiae help from former solicitors general. Both Fried and Waxman agreed; Kenneth Starr, the only other former SG he asked, did not respond, according to Englert. Fried also argues that the deadline issue “is an open question that should be resolved by the court itself. So far, it seems to have been decided only by the clerk’s office.” Currently a Harvard Law School professor, Fried says he was glad to write the brief gratis on Englert’s behalf. “I would no sooner charge for it than I would bill my grandson for milk and cookies.” Fried agrees that his brief is an example of the collegiality of the Supreme Court Bar. “Lawyers are professional adversaries and professional friends, and when someone you work with and sometimes work against is in a situation like this, one ought to consider stepping up to the plate,” Fried says. “Collegiality is what makes it a profession, and there’s not enough of it.” Collegiality or no, other high court advocates say that Englert and his amici will have an extremely hard time persuading the court to relax its rule. The high court views the 90-day rule as a jurisdictional matter, which means that after the 90th day, the court does not even think it has jurisdiction over a case. “I feel for Roy. It could happen to any of us,” says another high court veteran, who preferred to remain unnamed. “But I don’t see what’s in it for the court to grant his motion.” But not all is lost for Northwest, even if Englert’s motion fails. The case would go back to lower courts for trial, and on appeal it could return to the Supreme Court, presumably meeting deadlines every step of the way. POOL PARTY As they enter their second term, the Supreme Court’s two newest justices have decided, at least temporarily, to stick with the court’s clerk-pooling arrangement, despite concerns that it gives law clerks too much power. In brief interviews in recent weeks, both Chief Justice John Roberts and Justice Samuel Alito said they will stay in the “ cert pool,” as it is called, for the current term. Roberts said he will participate on a “year-to-year basis,” and Alito said the same; both indicated they are still weighing the issues that have been raised. But Alito said that during his first term it was apparent to him that certiorari petitions need to be read closely to determine if they are worth granting � suggesting some need for pooling the workload. The arrangement, devised in 1972, radically changed what happens when a petition for review or certiorari comes in to the court. Instead of being reviewed separately by nine clerks and/or nine justices, it is scrutinized for the pool, presumably in greater depth, by one clerk, who then writes a memo for all the justices in the pool. The pool drew little criticism when only four or five justices participated. But ever since the late Thurgood Marshall left the court, in 1991, Justice John Paul Stevens has been the only justice outside the pool, preferring to have his clerks take a separate look at petitions, partly as a backstop for the pool. In a 1997 speech when he was in private practice, Roberts said he found the pool “disquieting” in that it made clerks “a bit too significant” in determining the court’s docket. During his confirmation hearings in January, Alito said he was “aware of the issue” surrounding the pool. He added: “We cannot delegate our judicial responsibility. But . . . we need to find ways, and we do find ways, of obtaining assistance from clerks and staff, employees, so that we can deal with the large caseload that we have.” In their new book on the court’s clerks, “Sorcerers’ Apprentices,” authors Artemus Ward and David Weiden chart the history and impact of the pool. At the same time the pool has increased the power of clerks in the gatekeeping function, they say, it has made clerks less candid and more timid in their recommendations. “The pool writers are going to be less candid than they would be with their own justice,” says Ward in an interview. “It has a chilling effect.” The book also asserts that since the pool was created, “the number of separate concurring and dissenting opinions issued by the justices exploded.” In other words, by lightening the load of petitions each clerk has to read, the pool frees the clerks to write more opinions for their justices. By the authors’ estimate, each clerk in 1970 reviewed an average of 634 petitions, while in 2000 that number was down to 271. “This is something they know they will have to face sooner or later,” says Ward. “They may be just leaving well enough alone until Justice Stevens leaves. Then the question will be whether his successor joins the pool.” PARADISE ISLAND Chief Justice Roberts has found an island getaway � but not in the Caribbean. It’s on a small island off Port Clyde, Maine. Hupper Island boasts no more than 25 homes and is described as very rural and rustic � and far from luxurious. In short, a good place to escape to and dress down from the starched-shirt intensity of the nation’s capital. According to county and township documents, Roberts and his wife, Jane, paid $475,000 in June for a two-acre property and roughly 1,300-square-foot house on the island. The seller was Steve Thomas of “This Old House” TV fame. The island is reachable by boat, and that has proved to be a bit of a problem for Roberts. In a brief interview on the subject of his new home, Roberts joked that he had trouble achieving the right ratio of gas to oil for his boat’s motor on a recent trip. The main reason for the miscalculation, he said with a laugh, was that when he asked around to be sure how many pints there are in a quart, most people told him four � instead of two, the correct answer. But it’s clearly a place that has charmed the chief justice. He was born in New York and grew up in Indiana, and has no family connections in Maine. But Roberts said his family has vacationed in the area in two of the past four years and decided to take the plunge. Kevin Lipson, a partner at Roberts’ former law firm Hogan & Hartson, owns a house on the island and introduced him to the rustic retreat several years ago. Town assessor’s agent James Murphy Jr. describes Roberts’ house as “pretty average,” a one-story structure built in 1965 but remodeled a few years ago. It also has an “outbuilding,” Murphy adds, but he is quick to assure that it is not an outhouse but a shed. Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected].

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