SCOTUS Drives a Stake Through The Heart of Rule 33.1

The Supreme Court should permanently exempt cert-stage briefs from the Byzantine printing and paper requirements of Rule 33.1

|The Volokh Conspiracy |

The Supreme Court imposes a byzantine policy for submitting printed briefs. Rule 33.1. provides that almost all submissions must be printed on in a "6⅛- by 9¼-inch booklet. And not just any paper will do. The Court requires "opaque, unglazed, and not less than 60 pounds in weight." And the documents must use "saddle stitch or perfect binding." Plus "[e]very booklet-format document shall have a suitable cover consisting of 65-pound weight paper in the color indicated on the chart in subparagraph 1(g) of this Rule." There are thirteen separate colors. Make sure you don't confuse a light green cover (Amicus brief in support of Petitioner) from a dark green cover (Amicus brief in support of Respondent)  Oh, and you have to submit 40 copies of each booklet–enough for the Justices, the clerk, and court staff.

These rules are very expensive to comply with. Most printing companies charge several thousand dollars for a cert petition. And it is extremely difficult to print it on your own. If you make a mistake, it may be necessary to reprint the entire lot and start from scratch. Recently, the clerk's office gave me the option of putting a piece of white tape over a minor error, rather than reprinting the entire brief. I gladly accepted the option. (Kudos to the clerk's office for maintaining efficient operations during this difficult time).

Rule 33.1 may have made sense decades ago when word processing and desktop publishing was cost prohibitive. But today, these particular requirements merely create unneeded costs. And they limit access to justice for many litigants who can't afford to hire a printing firm.

Several of the Justices have indicated that they read briefs on their iPads. (Many circuit judges use iPads during oral arguments). I am fairly confident that law clerks are comfortable reading briefs on a screen. Rule 33.1 is a vestige of a long-ago time, and should be radically altered.

Tempora mutantur, nos et mutamur in illis.

COVID-19 has brought another unexpected, but welcome change to the Court. Today, the Supreme Court put a stake through the heart of Rule 33.1. The brief order provides:

IT IS ORDERED that with respect to every document filed in a case prior to a ruling on a petition for a writ of certiorari or petition for an extraordinary writ, or a decision to set an appeal for argument, a single paper copy of the document, formatted on 8½ x 11 inch paper, may be filed. The document may be formatted under the standards set forth in Rule 33.2, or under the standards set forth in Rule 33.1 but printed on 8½ x 11 inch paper. The Court may later request that a document initially submitted on 8½ x 11 inch paper be submitted in booklet format.

Rule 33.2 is much, much easier to comply with. Litigants can use normal 8½ x 11 inch paper, of any weight. And there is no requirement to bind the document in booklet form. A staple in the "upper-left hand corner" works.

This policy should be the new normal. There is no reason to require litigants to jump through hoops to submit a cert petition that will almost certainly be denied. If cert is granted, funds are more likely to be available to cover the intricacies of Rule 33.1. But at the cert-stage, litigants should be able to quickly and easily file briefs using normal paper size. Rule 33.2 should be the norm. I hope this rule is maintained indefinitely.

Today's order also exempted certain filings from paper submission altogether:

IT IS FURTHER ORDERED that the following types of documents should not be filed in paper form if they are submitted through the Court's electronic filing system: (1) motions for an extension of time under Rule 30.4; (2) waivers of the right to respond to a petition under Rule 15.5; (3) blanket consents to the filing of amicus briefs under Rules 37.2(a) and 37.3(a); and (4) motions to delay distribution of a cert petition under the Court's Order of March 19, 2020.

The Supreme Court's electronic filing system is excellent–far better than CM/ECF, which the lower courts use. And it is free to the public. Kudos to the Court for developing this system. These changes should be permanent as well. No one will miss these antiquated rules.

On Monday, the Court announced that it would live-stream telephonic oral arguments. Bravo! I wrote an Op-Ed on this topic that was scheduled for Tuesday morning. I argued that the Court should set a special September sitting for the unargued cases. I did not think the Court would even consider telephonic arguments. Glad I was wrong. I hope this change persists for the future.

It will be difficult for the Court to go back to normal. I like the new normal.

NEXT: After Pennsylvania Closed All Liquor Stores, Residents Crossed State Borders To Buy Booze. Now Ohio Is Shutting Down Out-of-State Sales.

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  1. “When this virus thing is over, let’s *tighten* the rules on filing.”

    “Yeah – lavender-scented paper for appellants, rosemary for appellees.”

  2. The printers lobby loses a round!

  3. Unless the cost is a feature, not a bug (to discourage cert petitions), I agree that it doesn’t make sense to require it for cert petitions (although I think stricter publication requirements for granted cases makes sense).

  4. I love this idea! Luckily most of mine haven’t required booklets, just filing BIOs to defendants filing in forma pauperis, so I got to use 33.2. But the few times my office has considered a cert petition, the cost of the printers was a huge part of the decision. That shouldn’t be the deciding factor in whether something should be pursued.

  5. This is so 19th Century.

    Almost all of my practice is in the state and federal trial courts, and 95%+ of what I generate never actually “hits paper,” but rather goes direct from my PC screen to .pdf to e-filing.

    There is no good reason for appellate courts to continue to require briefing on-dead-trees.

    It’s fine to have formatting rules designed to ensure easy readability of .pdf documents, and some level of uniformity. And I’m totally okay with length limits — the need for which is obvious at both the trial and appellate levels. But the printing rules for the SCOTUS are a painful anachronism that ought to be put out of their own misery. No one but printers will mourn them.

    1. “And I’m totally okay with length limits — the need for which is obvious at both the trial and appellate levels.”

      There has to be a …. maxim, rule, law, postulate …. something that provides the measure for when you have to switch from enforcing a MINIMUM required length to a MAXIMUM required length.

      I was just thinking about this, in relation to cajoling an unruly teenager to write the bare minimum required of them for a class, and thinking, “Wow, what I would give to have THAT problem instead of being forced to spend days trying to cut everything to fit with a 50 page maximum!”

      1. I was just thinking about this, in relation to cajoling an unruly teenager to write the bare minimum required of them for a class, and thinking, “Wow, what I would give to have THAT problem instead of being forced to spend days trying to cut everything to fit with a 50 page maximum!”

        Yes, I was actually explaining that irony recently to my middle schooler, the switch over the years from “We have to write how much?” to “We can’t write more than that?”

        1. I think Abraham Lincoln said that lawyers were the only group who would write 75 pages and call it a “brief”.

      2. LOL. That gives me visions of a SCOTUS decision saying TLDR 🙂

        Maybe the waiting time for cases to come to arguments could be enhanced if all filings were limited to 144 characters. 🙂

        1. LOL. That gives me visions of a SCOTUS decision saying TLDR ????

          I give you Chief Judge Dennis Jacobs of the Second Circuit, dissenting:

          “I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it.”

          Husain v. Springer, 494 F. 3d 108, 136 (2nd Cir., 2007)

    2. Almost all of my practice is in federal trial court, with of course e-filing. But I still run into some federal judges who demand paper courtesy copies of everything one files — even a one-page letter. Hell, some still insist that they be faxed a courtesy copy of the e-filed letter, which makes about as much sense as requiring that it be written with quill and ink bottle.

  6. Wow. I filed a petition in cert in 1994. We printed it out in our office then had a local print shop make the final copies. Total cost back then was about $500. A few weeks later I was at a CLE where then Clerk of the Court, William Souter (MG retired) was the featured guest. I showed him a copy and he was impressed. He eyeballed it and said it was perfect. Then he saw the return file stamp date on it. He was very impressed.
    Back then, 26 years ago, he was saying how he was hoping he could get the rule changed so that more people could file more easily. I understand the need for consistency; it makes it easier for the Justices to read mass quantities. But it is a challenge to comply.

  7. At some point, the Justices may all be issued identical e-readers. Then petitions and briefs can be filed in a format that is compatible with the e-reader. It will be a lot easier for the justices to read them and a lot easier for counsel to prepare them. But then, maybe the difficulty is a feature, not a bug. Except that the justices read many/all of the hand written documents submitted by the self-represented jailhouse lawyers (I’d love confirmation of this).

    1. I’d imagined the Justices have minions who retype those hand written documents before they see them.

  8. No one will miss these antiquated rules.

    Right. No one will miss them until the vagaries of electronic archiving result in destruction of the entire contents of the archive. Which will probably happen in 50 years or less. Then, everyone who wants to see what happened will miss everything.

    Acid-free paper remains a far better archival medium than anything else available. If you have important contents in your computer which you want to preserve for a long time, print them out and give them an archival-quality home in an acid-free storage box of the sort professional archivists have been using forever. Given physical security of the structure housing the record (a need which applies alike to electronic records) you should be good for at least a thousand years. Probably more.

    Lawyers are lucky the rule does not specify the best available archival medium. That would probably require cuneiform writing on archival-quality clay bricks. Those can look as good as new after 5,000 years. Nobody knows how long they may last.

    By the way, anyone who thinks the costs of printing are unreasonable ought to click the link the OP provides, (“extremely difficult”). It’s an amusing read, but an understated review, that gives insight into the expertise printers save their customers from having to master.

    As for the complaint in the OP, “If you make a mistake, it may be necessary to reprint the entire lot and start from scratch.” Yeah, that’s printing.

    Give some thought to what that was like for designers and printers of lengthy corporate annual reports (back when they were works of art, and printed on paper). An out-of-place comma, if it was a “printer’s error,” could force a restart on a printing job costing hundreds of thousands, or more. Book designers and printers, understandably, relied on stringent proofing rules to shift that responsibility to clients before committing ink to fantastically expensive paper. Of course, if you plan to print it yourself, then the Supreme Court becomes the client, and you can’t unload the responsibility. Still think printers are gouging you?

    1. Acid-free paper remains a far better archival medium than anything else available.

      Proven by us having 100% of all the 2000 year old paper documents which have survived to this day.

    2. My point exactly, and I don’t think Baby Boomers realize just how much of their history is crumbling — that they will outlive it.

      A lot of the TV news from the 1970’s and 1980’s was shot directly on magnetic videotape and is increasingly lost. We have the stuff from the 1960 that was shot on movie film, and the modern digital stuff, but increasingly little of the stuff in between.

      And while acid paper was (is) far cheaper, it doesn’t last and libraries are full of crumbling books. Supreme Court documents are also historical documents, they explain how people were thinking at the time and as such are valuable to future generations.

    3. I believe a laser printer document on acid free paper will survive quite nicely for a very long time. The toner is mostly carbon and will not fade like many inks.

      1. I think you are right about toner and acid-free paper. But there is a question about toner bonding to the paper. Not sure how long it takes before the toner just flakes off, if it does. Sometimes you see that happen almost immediately, when fusing works wrong, so that is for sure a variable. I don’t think toner saturates the paper practically at all.

        For that reason, you might do better with newer ink-jet technology. The days of rapid ink-fade are mostly in the past.*

        *Today’s ink-jet cartridges tend to be pigment-based, and pretty archivally stable. On the order of hundreds of years at least. Visually detectable changes (note, “detectable,” not drastic) in color photographs are projected to be > 100 years, but real-life proof is still ~ 85 years in the future. Ten years ago, I exposed a pigment-based ink-jet image on a windowsill, where it was in direct sunlight at least a few hours a day. After about 4 years of that, I printed a fresh copy and compared them, finding no notable change. That is a pretty stern test, maybe more demanding than many decades of archival storage—but there is still much to learn about new color printing technologies. Presumably, black pigment-based ink will prove at least as durable as the others.

    4. Stephen, court cases are not about history. They are about justice for the parties and the application of the rule of law.

      If even one litigant is deterred from bringing a meritorious petition to the Supreme Court because of its cost, the damage done by that is far more, far far more, that any hypothetical injury to future archivists.

      At any rate, given there are literally tens of thousands of redundant copies of everything the Supreme Court has done out there, I don’t think we have anything to worry about. Certainly not in 50 years. If you want to argue that 1000 years ago, all of it might be lost, well, maybe, but who the hell cares? We’ll all be dead and justice in the present is a lot more important than whatever those future humans will be doing.

    5. I will happily bet you any sum you care to name that all every volume of the Supreme Court reporter and all the case documents currently available at supremecourt.gov wi;l remain continuously available electronically between now and April 16, 2070. I’ll even give you odds.

  9. I still have all of my mom’s 2000 year old papers.

    1. I’ve personally read some of Nathaniel Bowditch’s correspondence circa 1800-1820 along with some even older printed books. Yes, they were fragile and I was wearing special gloves, but there are historical documents this old in our archives.

      Of course the younger generation isn’t being taught how to read handwriting anymore, but that’s another issue.

  10. But if we do away with all the arcane and opaque hoops one must jump through just to properly file court papers, what will we need lawyers for?

    1. “But if we do away with all the arcane and opaque hoops”

      That’s not how it works. They will come up with new/fresh opaque hoops.

  11. WHOA the court will live stream oral arguments?? THATS HUGE! Now we just need video and we will finally be in the 21st century!

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