Chief Justice John Roberts Jr. used to write full-length Supreme Court briefs for a living, as a Hogan & Hartson partner. But now, as a consumer of such briefs, he’s become something of a critic, once famously stating that he never read a brief that was so good that he wished it were longer.
New rules adopted by the Court last month set to take effect Feb. 16 will guarantee that Roberts and his colleagues won’t get longer briefs, at least in one category. One of the changes will require lawyers to keep their reply briefs at the merits stage to 6,000 words instead of the previous limit of 7,500. In an explanatory comment on the change, the clerk of the Court said the Court was returning to a length close to what it had required in earlier years when it used page limits. “Experience has shown that the increased volume limit has allowed for the filing of some briefs that repeat previous arguments rather than address only new material presented in intervening briefs.” In other words, lawyers have been padding their briefs.
But some practitioners say the new limit will be difficult to meet, in part because of the proliferation of amicus curiae briefs in recent years. Asked about the rules, several Mayer Brown Supreme Court experts voiced concern. “This will surely be very frustrating to members of the bar,” said David Gossett, partner at Mayer Brown and an expert on Court rules. “A limit of only 6,000 words for the reply brief will make it difficult for petitioners to adequately respond not only to the arguments raised in respondents’ bottomside briefs but also to the arguments raised in all of the bottomside amicus briefs.” For the same reason, Mayer Brown partner Evan Tager also said, “I am disappointed by the reversion to a shorter reply brief. Given the explosion of amicus practice, it is very difficult to respond adequately to both the respondent’s brief and those of the respondents’ amici in the more limited number of words.”
But Deanne Maynard, head of the appellate practice at Morrison & Foerster, seemed less concerned. “Although I’m sure I’ll wish for more words in my next reply brief, I think that 6,000 words is usually enough. A pithy reply is more effective.”
The ony other rule change we’ve heard much objection to is the new requirement that lawyers include their email addresses on the cover of documents filed with the Court. Some lawyers worry that will make them vulnerable to spam or sales pitches, but Maynard said it’s a good idea. “If nothing else, it will save having to look up each counsel’s email.”