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When 5,000 more words are too many

In the lower federal courts, it is very common for lawyers to ask for permission — and get it — to file written legal briefs that are longer than the rules usually allow, especially in high-profile cases.   But such requests are exceedingly uncommon in the Supreme Court, and, not surprisingly, they have little chance of succeeding there. That has just occurred in a very big case, in counsel’s plea for an extra 5,o00 words of space.

In the case on the constitutionality of California’s “Proposition 8” banning same-sex marriage in that state, the Washington, D.C., and California lawyers for the ballot measure’s backers earlier this month said they needed 20,000 words, not 15,000 as allotted, to make their case, especially in the face of the other side having the chance to file perhaps 30,000 words combined.   But, without comment, Justice Anthony M. Kennedy turned down the request last Friday. (The case is Hollingsworth v. Perry, docket 12-144, now scheduled for oral argument on March 26.)

Under the Court’s Rule 33, the measure’s sponsors are permitted to file 15,000 words.  They urged Justice Kennedy to let that rise to 20,000.   One of their reasons was that the same-sex couples who filed the challenge to “Proposition 8” will be filing one brief, and the city and county of San Francisco will be filing another, both in opposition to “Proposition 8,” so “collectively, these briefs could be 30,000 words.”   An extra amount for “Proposition 8,” the application said, “will mitigate some of the potential disparity” between the two sides.

The filing also recounted how expanded the briefs had been allowed to be in lower courts as this case moved along.  And it also added the argument that it will take a bit more space because the Supreme Court, in agreeing to hear the case, has added a requirement that the two sides file written arguments on whether the ballot measure’s backers have a legal right (“standing”) to be pursuing their case in the Supreme Court.

The application added a footnote that the “Proposition 8” counsel may also ask permission to file a more expansive reply brief.  That, too, may well be doomed.

Recommended Citation: Lyle Denniston, When 5,000 more words are too many, SCOTUSblog (Jan. 14, 2013, 5:54 PM),