New rules and a new term

Word count for amicus briefs reduced

De Novo Review

Michael Scodro

Michael Scodro is a partner in the Supreme Court and appellate practice at Mayer Brown. Previously, he served for more than six years as Illinois solicitor general. Scodro also teaches a seminar on the U.S. Supreme Court at the University of Chicago Law School and currently serves as president of the Seventh Circuit Bar Association.
mscodro@mayerbrown.com

September 2019

Last November, the U.S. Supreme Court proposed a collection of changes to its rules.

Among these was a combination of suggested reductions to the word limit for certain briefs — from 15,000 to 13,000 words for each party’s principal brief on the merits, from 6,000 to 4,500 for merits replies and from 9,000 to 8,000 for amicus curiae briefs on the merits.

As the Clerk’s Comment offered in connection with these changes explained, “Experience has shown that litigants in this [c]ourt are able to present their arguments effectively, and without undue repetition, with word limits slightly reduced from those under the current rule.”

Other proposed changes would increase the minimum number of days between the filing of the reply brief and oral argument, require additional disclosures about a case’s litigation history in the certiorari papers and make clear that — even with the advent of electronic filing — it is the paper submission that determines whether a filing is timely.

In April of this year, the court adopted its proposed changes, effective July 1. See Revisions to Rules of the Supreme Court of the United States (April 2019).

The three changes unrelated to brief length came through exactly as proposed. But practitioners had expressed concern with some of the new word limits. In a letter signed by 18 law firms (including my own) that appear regularly before the court, the bar specifically resisted the word-count reductions for principal and reply briefs on the merits, with the letter’s most forceful opposition trained on the proposal to limit reply briefs to 4,500 words.

Ultimately, the court followed through with its proposal to reduce the length of parties’ principal briefs, which are now capped at 13,000 words. Note that this matches the cap imposed by a 2015 amendment to the Federal Rules of Appellate Procedure, but that several federal appeals courts, including the 7th U.S. Circuit Courts of Appeals, have opted out of that change, retaining a 14,000-word limit on principal briefs.

In two respects, however, the Supreme Court broke from its initial proposals. Most significantly, the court declined to impose any reduction on the length of reply briefs, which remain capped at 6,000 words, consistent with the strongest objection raised in the law firms’ letter.

At the same time, the court only partially adopted its original proposal to cut the size of amicus briefs. Private-party amici are now subject to the lower, 8,000-word limit originally proposed for all merits amicus briefs. But government amici — defined generally to include the United States and its agencies, “a State, Commonwealth, Territory, or Possession,” and “a city, county, town or similar entity,” Sup. Ct. R. 37.4 — retain the original, 9,000-word limit.

So unlike in the federal appeals courts, where all amici are subject to the same cap, see Fed. R. App. P. 29(a)(5), amicus briefs on the merits in the Supreme Court are now subject to two distinct word limits, depending on the nature of the party filing the brief.

Finally, a quick update on the De Novo Review column from this past June, which observed that the Supreme Court had not accepted any cases from the 7th Circuit for plenary review during the 2018-2019 term. Any merits decision in that term in a case from our home circuit, the column noted, would have to take the form of a summary disposition — a relatively rare mechanism whereby the court grants a certiorari petition and in the same breath issues an opinion without merits briefing or oral argument.

Shortly after submitting the June column for publication, the court did precisely that in a single case from our circuit, Box v. Planned Parenthood of Indiana and Kentucky Inc., 139 S. Ct. 1780 (2019) (per curiam), reversing a judgment by the court of appeals that had invalidated an Indiana law “relating to the disposition of fetal remains by abortion providers.”

Justices Ruth Bader Ginsburg and Sonia M. Sotomayor noted that they would have denied the certiorari petition rather than reach the issue the court addressed, while Justice Clarence Thomas concurred, offering views in connection with an issue in the petition that the court did not reach.

For more from the Supreme Court, we’ll have to wait until early October, when the new term ramps up.

The court will hear oral arguments starting on Monday, Oct. 7, with an order list — including dispositions of pending petitions for certiorari — expected that same morning.