I will be writing a series of posts (entitled “Matters of Practice”) on the most frequently asked questions I receive about filing briefs in the U.S. Supreme Court. This is the first post in the series.
At Cockle Printing, I am often asked what citation style the Supreme Court prefers and whether the Court’s rules specify a particular citation or quotation style. I will explain what the rules do and don’t say, and then I will give you some examples from some of the leading Supreme Court practitioners.
A small warning: this post will be rather tedious and probably boring to many. But for those of you wanting to file briefs like members of the expert Supreme Court bar this is valuable information.
The Supreme Court rules do not speak to any particular method for citing cases. But the Supreme Court Practice (referred to as the “Supreme Court Bible”) recommends that attorneys citing to Supreme Court decisions use the United States Reports only, with no additional citations to the S. Ct. and L.Ed. reporters. See Eugene Gressman, et al., Supreme Court Practice at 705 (9th Ed. 2007). The one exception to that rule is when a newly decided Court decision has not been officially reported. When that occurs, most attorneys use the “S. Ct.” citation. To see an example from SCOTUS Blog founder Tom Goldstein’s brief in Sorrell v. IMS click here and view pages vi and 30.
For circuit courts cases, most attorneys use the Bluebook style. An example of this style is: Bockes v. Fields, 999 F.2d 788 (4th Cir. 1993). This is the style Tim Coates from Greines, Martin, Stein, and Richland, employs in his SCOTUS briefs. To see an example of Tim’s citations click here and view pages vi through viii. And a few lawyers use the Supreme Court’s style for circuit court opinions: United States v. Murphy, 406 F.3d 857 (CA7 2005).
Most attorneys use Bluebook style for citations, and that is, if not the preferred method, the safest bet for citation style.
As a general matter, cases should be italicized rather than underlined. The Seventh Circuit has explained why italicization is preferable:
Case names are not underlined in the United States Reports, the Solicitor General’s briefs, or law reviews, for good reason. Underlining masks the descenders (the bottom parts of g, j, p, q, and y). This interferes with reading, because we recognize characters by shape. An underscore makes characters look more alike, which not only slows reading but also impairs comprehension.
One peculiarity I have noted about Supreme Court citation style is whether or not to italicize the “v.” in “versus” inside a citation (example, Apprendi v. New Jersey, 530 U.S. 466 (2000)). Attorneys in lower courts typically italicize the versus. The Solicitor General’s Office, however, does not italicize the versus and neither do several attorneys in private practice that previously worked for the SG’s Office, such as Vinson & Elkins lawyer, John Elwood, and Sidley Austin’s Carter Phillips. Strangely, other former Solicitors General such as Paul Clement and Walter Dellinger do italicize the versus.
When there is no consensus on a stylistic matter I usually revert to my default, which is to do what is easiest. I find having to italicize only the party names but not the “v” in a citation to be very time consuming and that is why I prefer to place the versus in italics. But that’s just my personal preference and not the Court’s.
Last year, the Court changed the rules on citing statutes. Considering that the Court rarely says anything about citations, I imagine that statutory citations have moved from a pet peeve to a source of real angst amongst the Justices. In response to their frustration, Rule 34.5 states that “[a]ll references to a provision of federal statutory law should ordinarily be cited to the United States Code, if the provision has been codified therein.” If the statute has not been codified in the Code, then a lawyer should cite to the “Statutes at Large.”
With regard to quotations, the Court is unusually specific. All quotations over 50 words should be indented. Rule 33.1(b); Supreme Court Guide to Filing Paid Cases, at 1. And these indented quotations “shall be single spaced.” Rule 33.2(a). For a great example on how to use block quotations, check out Orin Kerr’s brief here and view pages 6. 17, 24, 32, and 35.
If you have questions concerning citations and quotations, please leave them in the comment box and I will try my best to answer them.
This article was cr0ss-posted at The CockleBur.