Book review: New edition for a classic treatise

For Supreme Court practitioners, or anyone else who may need to file a brief at the U.S. Supreme Court, it could be the best $495 you ever spend.  Now in its tenth edition, Supreme Court Practice is regarded as a sufficiently authoritative resource on all things related to the Court that it is cited not only by lawyers who argue there but also by the Justices themselves.  From the inside front cover—which provides a map of the first floor of the Court building, where the courtroom itself is located—to the inside back cover (which provides a map of the ground floor) and all of the nearly 1500 pages in between, the treatise is a treasure trove of information.  Want a flow chart that illustrates how a case moves through the Court?  Check.  Need practice pointers?  The authors spend sixty pages on oral argument, covering everything from preparation to courtroom fashion.  Looking for substantive assistance on legal issues like jurisdiction or stays?  Consult chapters 2, 3, and 17, respectively.

In fact, Supreme Court Practice covers so much ground so completely that it poses a bit of a conundrum for the reviewer:  where to start?  For this review, at least, the answer is that a lot has happened at the Court and in Supreme Court practice since 2008, when the ninth edition was released.  (Sadly, these changes also include the line-up of authors:  Eugene Gressman, whose name is so closely associated with the treatise, passed away in 2010; the four remaining authors of the ninth edition—Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, and Edward A. Hartnett—have been joined by Dan Himmelfarb this go-round.)  This review will focus on some of the most interesting and significant of those changes.

In the last few years, the number of law schools offering Supreme Court litigation clinics has continued to rise:  among others, Stanford, Yale, Harvard, George Mason, Emory, the University of Virginia, the University of Pennsylvania, West Virginia University, and Northwestern all boast such clinics.  Even more broadly, the role of a group of Supreme Court specialists—known as the “Supreme Court bar”—in briefing and arguing cases at the Court has grown over the years.  As the new version of the treatise chronicles, this has resulted in the increased availability of pro bono counsel at the certiorari stage (when the Court does not appoint counsel for an indigent party) when there is “a realistic prospect of certiorari being granted.”  But, as the treatise explains, when a party represented by counsel files a “paid” petition—that is, pays the filing fee and the costs of having his petition printed in booklet format—and certiorari is granted, the Court may deny a motion to proceed in forma pauperis at the merits stage even if he might otherwise qualify to do so.  The treatise also notes that the Court’s 2013 amendments to Rule 28.8 formalized the Court’s current policy of limiting oral arguments to attorneys—non-lawyers need not apply, even to argue their own cases.

Another sea change at the Court since the publication of the ninth edition has come in the sometimes controversial use of the Internet, by both the lawyers and the Justices themselves, to supplement the record.  The authors have added an entirely new sub-chapter—Chapter 12.11(b)—to chronicle some of these developments, and they also provide a useful, “big picture” takeaway, citing the greater reliance on the Internet as an example of the “great importance of not taking too blinkered a view of one’s case, but reading as broadly around the relevant topics and time and budget allow.”  And of course, no discussion of the Court in the last few years would be complete without a reference to 2012’s historic arguments in the challenge to the Affordable Care Act’s individual mandate—which, the treatise points out, is one of the “most recent example[s] of a ‘case[] of extraordinary public importance and difficulty’ . . . that merited additional argument time.”

Although much of the treatise focuses on the essential minutiae of Supreme Court practice, it is just as valuable for its surveys of more substantive points.  For example, in Chapter 11.3, the authors devote over ten pages to the Court’s “rarely exercised” and “often misunderstood” practice of issuing original writs of habeas corpus.  On this point, the new edition contains an extensive analysis of the Court’s 2009 use of its power to transfer the habeas petition filed by Troy Davis, who had been convicted and sentenced to death for the murder of a Georgia policeman, to a district court.  That court, the Supreme Court instructed, should “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis’s] innocence.”  In Chapter 18.8, the treatise breaks down the Court’s practice in dealing with stays of execution, including the scenario in which the Court falls one vote short of the five votes needed for a stay.  And the treatise canvasses some of the important new additions to the Court’s mootness jurisprudence, from its 2013 decision in Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326 (2013), holding that the case was not moot—despite a change in the rule at issue—because the party challenging the rule remained “at risk of penalties for past conduct, to its decision the same year in Chafin v. Chafin, 133 S. Ct. 1017 (2013), allowing a father’s appeal of an international family law ruling against him to continue even though the child was no longer in the United States.

Given the many changes in the Court’s practice and procedure in the five years between the ninth and tenth editions of Supreme Court Practice, it is fascinating to contemplate what changes might be in the works in the next five years.  But one thing we do know is that, whatever those changes may be, the treatise will be back to provide us with a full report.

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