SCOTUS Welcomes Two Rule Changes and the Legal World Responds

By Rafael Santa Maria (PO ’20)

Last week, the Supreme Court implemented official rule changes that reduce the word limits in court briefs and identify potential conflicts of interest. Originally proposed last November, these changes intend to reduce the Court’s caseload and make it clear when justices must recuse themselves from certain cases. These new rules go into effect on July first.

Regarding the word count reductions, the new rules reduce the length of merits briefs—legal briefs that explain the right and wrong aspects of the previous court’s decision—from 15,000 words to 13,000. Briefs filed by third parties concerned with the outcome of the case, known as amicus briefs, have also been capped at 8,000 words from 9,000 before. However, the word limit for reply briefs remains unchanged at 6,000 words, despite the Supreme Court’s original proposal to reduce them to 4,500.

Accompanying the formal rule changes were comments from Supreme Court clerk Scott Harris, who attempted to explain the new word limits, writing, “Experience has shown that litigants in this Court are able to present their arguments effectively, and without undue repetition, with word limits slightly reduced from those under the current rule.” In addition to arguing that lawyers should be able to write more concise briefs, Harris points out that the various federal appeals courts implemented similar reductions in 2016.

Nevertheless, the word limit changes faced opposition from 18 law firms specializing in Supreme Court advocacy shortly after they were proposed in November. These firms claimed that the reduced word limits would make it harder for attorneys to adequately develop their arguments in the merits briefs, likely steering cases in favor of “well-funded interests” that would receive additional argumentative support through amicus briefs.

Despite these initial concerns, overall reception from the legal community has been mixed, not purely negative. John Elwood, a partner at the law firm Vinson & Elkins, argued that the new rules would not harm merits briefs since, “issues are frequently more narrowly focused in the Supreme Court than in the court of appeals.” Voicing support for the new rules, Anthony Franze of the firm Arnold & Porter Kaye Scholer noted that the new rules would cull the piles of amicus briefs and improve their quality.

The second major change requires both parties in a case to provide a detailed list of the case proceedings from the lower level courts. This change was designed to help justices determine whether they are personally involved the case, therefore allowing them to promptly recuse themselves.

The Supreme Court’s blog points to Justice Anthony Kennedy’s last-minute recusal in a tribal fishing rights case as justification for this new rule. In that case, Justice Kennedy almost failed to recuse himself since he did not realize that he adjudicated the same case when he was serving as a judge on the 9th Circuit Court of Appeals years earlier. By providing justices with adequate background info, the new rules aim to prevent this scenario from happening again.

Unlike the word limit reductions, the conflict of interest rule enjoyed tacit approval from the legal community and faced no opposition when it was proposed. This positive reception follows a SCOTUS controversy in January, in which Justices Stephen Breyer and Samuel Alito failed to recuse themselves from a case involving a company in which both justices owned shares. Considering that SCOTUS justices have a history of failing to recuse themselves, the change was applauded as a step in the right direction.

While reception to the Supreme Court’s new rules varies, it is impossible to determine exactly how or to what extent these changes will impact the Court, court advocates, and the outcome of cases. Thankfully, present analyses—though limited—seem to indicate that these changes will either be inconsequential or marginally beneficial, rather than negative.

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