Supreme Court Agrees to Consider Case, Without Having Heard Yet from Respondents

That’s very unusual. A bit of background: If a litigant loses below, and petitions for certiorari (i.e., Supreme Court review), he is labeled the “petitioner,” and the winner the “respondent.” When respondents see a petition filed, they sometimes file a brief in opposition (called a BIO), but often waive their right to respond. If the respondents waive that right, and a Justice thinks there might be something to the petition, that Justice can “call for a response” (CFR), and the respondents will almost always respond. The Court never grants review without having either gotten a response at the outset, or having CFR’d, because it’s generally helpful for the Court to hear both sides’ views before granting.

But in Burnside v. Walters, which the Court granted today, the Court CFR’d — technically, “Requested” a “Response” — but did not get a response. The Court then considered just the petition, together with an amicus curiae brief from the American Friends Service Committee supporting the petition (now there are some Friends of the Court for you, though, as it happens, not in Pennsylvania), and agreed to hear the case.

What happened to the respondents? Well, for starters, they apparently never got a lawyer. This is probably because of the procedural posture of the case, which relates to the question presented by the case: Under the federal “in forma pauperis” statute (the one that allows people who can’t afford filing fees to have those fees waived), as amended in 1995, federal courts act as gatekeepers for in forma pauperis claims, and dismiss them without the other side even being served if they fail to state a legally sufficient claim. This is what happened to plaintiff-petitioner’s claim against the defendant police officers (and the local YMCA, where he lived). But then the district court also read the statute as barring the plaintiff from amending his complaint and refiling, and the Sixth Circuit (unlike most other circuits to consider the claim) agreed.

Because of this, defendants were never served below — since the federal courts thought the case against them was frivolous — and never got a lawyer. The Court must have sent them the request for a response (at their businesses addresses), but they either didn’t properly understand its significance or chose not to get a lawyer, though I assume that the city would likely have gotten a lawyer to represent them. Presumably at this point they will remedy that condition.