The Volokh Conspiracy

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SCOTUS Restores Rule 33.1 For Printed Copies of Briefs

Not a good sign for those hoping the pandemic made permanent changes to the Court's practices.


In April 2020, I praised the Supreme Court for loosening Rule 33.1. This rule creates a byzantine regime for printing copies of briefs. It is difficult and expensive to comply with. At the end of my post, I hoped that the pandemic might yield permanent changes in the Court's practices.

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. . . .

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

Once again, my predictions about the Court were wrong. It apparently is very easy to go back to the old processes.

Today the Court issued a two-page order. The Court rescinded its March 19, 2020 and April 15, 2020 orders, subject to a few caveats. In short, after September 1, all of the requirements of Rule 33.1 go back into effect.

IT IS FURTHER ORDERED that the requirement of Rule 33.1 that 40 copies of documents be submitted in booklet format will go back into effect as to covered documents filed on or after September 1, 2021. For submissions pursuant to Rule 33.2, the requirement of Rule 39 that an original and 10 copies be submitted, where applicable, will also go back into effect as to covered documents filed on or after September 1, 2021. The authorization to file a single copy of certain documents on 8½ x 11 inch paper, as set forth in the Court's April 15, 2020 order, will remain in effect only as to documents filed before September 1, 2021.

This order does not bode well for those hoping that live-streamed oral arguments continue. I think we will go back to the stone age.