More on the Revised Rules

By Amy Howe
on Jul 17, 2007 at 4:35 pm

UPDATED 7/18/07 10:45 a.m. Although I indicated below (based on the “Revisions to Rules” issued yesterday) that the word limit for merits reply briefs is (as in the proposed revision) 6000 words, the complete version of the rules available on the Court’s website indicates that the word limit for merits reply briefs is in fact 7500 words. So the Court apparently was moved, at least in part, by comments that the proposed word limits for reply briefs were too small; the word limit for cert. reply briefs remains (as in the proposed revision) at 3000 words.

As Lyle notes below, the Court today issued its revised rules, which will take effect on October 1, 2007 – i.e., the first Monday in October. In a series of posts earlier this year (here, here, and here), Kevin has already discussed the proposed rules (as well as reactions from, and comments by, Supreme Court practitioners regarding those rules) at some length, so I won’t go into detail about aspects of the final rules that are the same as the proposed revisions. However, as I will discuss in this post, some of the final revised rules differ in some important respects from the proposed revisions and reflect the input of the commenters.

Rule 25 outlines the schedule for the submission of merits briefs. Under the old rule, the respondent’s brief was due 35 days after the petitioner’s brief. It’s now due 30 days later (this is unchanged from the proposed revision), but the reply brief is 30 days after that, rather than the 25 days originally proposed.

Rule 33.1(b) deals with the much-discussed font issue. The final rule maintains the font size originally proposed – 12-point for text, 10-point for footnotes – but slightly expands the universe of typeface possibilities from New Century Schoolbook (the original proposal) to the entire “Century family (e.g., Century Expanded, New Century Schoolbook, or Century Schoolbook).”

Rule 33.1(g) remains unchanged from the proposed revisions, which impose word limits for various briefs. Thus, petitions and BIOs may not exceed 9000 words, merits briefs are capped at 15,000 words, and amicus briefs may not exceed 9000 (merits) or 3000 (cert. stage). Notably, the Court was apparently unmoved by the suggestion that the proposed word limits for reply briefs were too short; as in the proposed revision, those briefs are capped at 6000 words (merits) and 3000 words (cert. stage).

Rule 37.2(a) deals with the time to file amicus briefs at the cert. stage. Under the proposed revisions, amicus briefs – which are currently due when the brief in opposition is due – would have been due within 30 days after the case is docketed, with no possibility of an extension. As the Clerk’s comments to the final rules note, this change was intended to allow a respondent to respond to the arguments in an amicus brief in its BIO. However, to address the scenario in which the respondent waives its right to file a BIO, the Court further revised the rule to provide that amicus briefs are due 30 days after docketing or, alternatively, “a response is called for by the Court, whichever is later, and that time will not be extended.”

Rule 37.2(a) also addresses another issue that drew the attention of commenters: the proposed requirement that amici notify the parties of their intent to file a brief. The final version of the rules adopts the proposed requirement that such a notification be made at least ten days before the brief is due (thereby giving the respondent an opportunity to seek an extension of time for its BIO so that it can respond to the amicus brief), but the Court tweaked the language of the rule to make clear that, for briefs joined by more than one amicus, the parties need only be notified of the intent to file the brief: the rule now provides that “[o]nly one signatory to any amicus curiae brief filed jointly by more than one amicus curiae must timely notify the parties of its intent to file that brief.”

As Kent Scheidegger noted in his comments to Lyle’s earlier post, Rule 37.6 has been revised to require that a merits amicus brief be filed “within 7 days after the brief for the party supported is filed, or if in support of neither party, within 7 days after the time allowed for filing the petitioner’s or appellant’s brief.” This change adopts the practice followed in federal appellate courts and, as the Clerk noted in his comments, allows an amicus “to review the completed brief of the party being supported and avoid repetitious argument.”

In the final version of Rule 37.6, the Court did not adopt the proposed requirement that the first footnote indicate, inter alia, “whether . . . counsel or a party is a member of the amicus curiae, or made a monetary contribution to the preparation or submission of the brief.” Instead, the first footnote is required to disclose only “whether such counsel or a party made a monetary submission intended to fund the preparation or submission of the brief.” As the Clerk’s comments explained, this “change would require the disclosure that a party made a monetary contribution to the preparation or submission of an amicus curiae brief in the capacity of a member of the entity filing as amicus curiae. Such disclosure is limited to monetary contributions that are intended to fund the preparation or submission of the brief; general membership dues in an organization need not be disclosed.”

Finally, Rule 48.1 provides that the effective date for the revised rules (which had originally been slated to go into effect on August 1, 2007) is now October 1, 2007. Equally importantly, Rule 48.3 clarifies (in response to comments such as those of David Gossett et al.) how the new rules will apply to pending cases: if the petition but not the BIO has been filed before October 1, “all remaining briefs submitted in that case prior to the Court’s decision whether to grant review may comply with” the old rules, as may the briefs in any cases in which topside briefs have been filed before that date.