Is It Ever Too Late To Be Rule 36'd?

Those that regularly practice before the Court know about Rule 36s. We've written about them before. It's a one-line per curiam decision that generally comes a few days after oral argument:

AFFIRMED. See Fed. Cir. R. 36.

This post isn't going to say anything about the merits of Rule 36s. That's been well discussed many other places. One thing, of course, critics of the practice should keep in mind is how much they like their oral arguments. In many respects, Rule 36s go hand-in-hand with the Court's practice to hold argument in every case represented by counsel. And with only a few primarily pandemic related exceptions where the Court cancelled a telephonic argument (see post here), the Court will issue an opinion when there is no argument. As someone who practices before the Court, this makes sense. You only generally have a sense (maybe strong emphasis on generally) of how judges are thinking about your case when there's an oral argument, and it's hard to