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Court announces proposed rule changes

This morning the Supreme Court announced several proposed changes to its rules and invited the public to comment on those proposed revisions by the end of the month. If the changes are implemented, their effect would fall almost exclusively on lawyers and litigants before the court.

The first of the four substantive proposed changes to the rules would require a petition for review to contain a complete list of all court proceedings, at any level, “that are directly related to the case in this Court.” Such a requirement, the comment to the proposed revision explains, “will assist in evaluating whether a Justice’s involvement in a case before joining the Court might require recusal.” To ensure that the list is complete, another proposed change would require the brief opposing review to correct any mistakes or omissions in the list of related cases. There is no way to know what prompted these proposed changes, but earlier this year now-retired Justice Anthony Kennedy – who joined the Supreme Court in 1988 – had to recuse himself from a case about tribal fishing rights when he belatedly realized that he had participated in the case as a judge on the U.S. Court of Appeals for the 9th Circuit. Without Kennedy in the case, the court deadlocked 4-4, leaving the lower court’s decision in place.

Under the court’s current rules, a reply brief on the merits is due either 30 days after the respondent’s brief is filed or by 2 p.m. one week before the oral argument, whichever comes first. Another revision proposed today would shorten the time to file the reply brief, which would now be due either 30 days after the respondent’s brief or by 2 p.m. 10 days before the oral argument in the case. The comment accompanying the proposed change explains that this revision is intended to provide “additional time for the Court to review reply briefs.”

Last year the Supreme Court moved to electronic filing for almost all briefs filed with the justices. One proposed revision today makes clear that, despite the advent of electronic filing, “paper remains the official form of filing.”

The final change proposed today would reduce the word limits for all briefs filed on the merits. If this change is implemented, the limit for merits briefs would be reduced by 2000 words (from 15,000 to 13,000); reply briefs would go from 6000 words to 4500 words; and “friend of the court” briefs would be reduced by 1000 words, from 9000 to 8000. The federal courts of appeals, a comment to the proposed change explains, imposed similar cuts two years ago.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Court announces proposed rule changes, SCOTUSblog (Nov. 1, 2018, 1:40 PM),