The U.S. Supreme Court’s newly announced rule changes will force advocates to make their briefs briefer, an unwelcome development for high court practitioners.
The changes announced Thursday, which take effect July 1, will limit briefs on the merits to 13,000 words, down from the current 15,000-word limit. Amicus briefs filed by nongovernmental entities will shrink from 9,000 to 8,000 words.
But the court, apparently responding to criticism from advocates, decided to keep the word limit for reply briefs at 6,000 words. Its proposed rule changes, made public last November, suggested a 4,500-word limit for reply briefs, a document that advocates view as highly important in culminating their briefing before the Supreme Court.
The court also added wording to its rules making it clear that all documents filed with the court must be submitted in paper form, not just electronic, and requiring petitioners and respondents to list all related lower court proceedings to help justices determine whether they had prior involvement and should recuse themselves.
But the word-length changes seem to be the most controversial.
Court clerk Scott Harris, in commentary explaining the reasoning behind the trims, wrote, “Experience has shown that litigants in this Court are able to present their arguments effectively, and without undue repetition, with word limits slightly reduced from those under the current rule.”
When the changes were proposed, a coalition of 18 law firms with Supreme Court practices pushed back.
The proposed limit on reply briefs was a “cause for concern,” the law firms’ statement said, and the limits on merits briefs “would be harmful” to lawyers’ ability to “thoroughly and thoughtfully brief issues that are critical to the court’s resolution of the cases before it.”
Now that the court has decided on the rule changes, the reaction is mixed.
“The bar will undoubtedly adapt to the court’s rules and have fewer words to develop arguments fully in merits briefs and respond to arguments in amicus briefs,” said veteran advocate David Frederick, a partner at Kellogg, Hansen, Todd, Figel & Frederick. “This development further tilts the playing field toward well-funded interests that can develop ancillary arguments in amicus briefs. To the extent the rules change advances that trend, it’s unfortunate.”
Vinson & Elkins partner John Elwood said Friday, “While the rule change is not ideal for practitioners, I think it’s a solution that they can live with. The reduction from 15,000 to 13,000 makes the word limit in the Supreme Court tighter than in many courts of appeals. But issues are frequently more narrowly focused in the Supreme Court than in the courts of appeals, and savvy practitioners will be able to cope with the change by writing more economically.”
Elwood added, “The most critical thing is that the court didn’t reduce the length of reply briefs, which are already a tight squeeze under the 6,000-word limit. And the reduction of the length of principal briefs brings the Supreme Court closer to the usual briefing model, under which reply briefs are half the length of principal briefs.”
Anthony Franze, counsel at Arnold & Porter Kaye Scholer, applauded the changes that will reduce the length of nongovernmental amicus briefs. “Over the past decade, amici have filed a record number of briefs. Last term alone, nongovernmental amici filed more than 800 briefs, so nixing a thousand words in each brief will reduce the pile, and likely improve many briefs.”