The Supreme Court is set to revise a number of rules early next term which relate to the filing of briefs, motions, applications, and documents under seal. A number of the changes will simply conform to long-standing practice, while others will change the way Cockle Legal Briefs prepares filings. The most relevant proposals, which have passed the Court’s April 28th period of public comment, include:
- Rule 34. “Passim” omitted in Table of Authorities.
Passim, derived from the Latin passus, means “scattered.” Cockle has long used passim to denote cases or authorities which appear on more than five pages of a brief. Supreme Court practitioner and Arnold & Porter partner John Elwood told the National Law Journal:
Eliminating the use of ‘passim’ is a substantive improvement, and probably overdue. As the D.C. Circuit realized years ago, it never made much sense to let parties eliminate a finding aid for the very sources that were most central to its argument. But the rule change probably matters less now, because so many people read briefs electronically and thus will likely use the word-search function anyway.
It should be noted that judges often use tables of authorities—much like a table of contents—to gain an understanding of the overall approach that a brief’s argument section will take. Forcing filers to list every page on which an authority appears will add a level of detail to the tables and emphasize how often the most-frequently authorities are used.
- Rule 34. Appendix Table of Contents.
The Court makes clear that a table of contents for an appendix should be included at the beginning of the appendix, and not simply as part of the brief’s table of contents.
- Rule 37. Amicus Curiae
The requirement to either obtain consent to file an amicus curiae brief or file a motion for leave to file without consent will be removed. The Court has found through practice that “the consent requirement may have served a useful gatekeeping function in the past, it no longer does so, and compliance with the rule imposes unnecessary burdens upon litigants and the Court.”
- Rule 26. Joint Appendix Docket Entries.
Where dockets entries in federal cases are easily accessible through the internet (PACER), there is no reason for them to be included in a joint appendix. However, for cases from state courts, a listing of the relevant docket entries in all the courts below should follow the joint appendix table of contents.
- Rule 33. 8½- by 11-inch Copy.
The 2019 Rules were revised to require that every filer submit a single 8½- by 11-inch copy of their booklet format brief in order to facilitate the scanning of documents in which an electronic version was not available.
This single, additional paper copy will still be required in cases where electronic filing will not occur (i.e., pro se, or non-attorney filings), but it will not be needed where the brief is submitted through the Court’s electronic filing system (i.e., by a member of the SCOTUS bar).
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These rule revisions will likely not impact pending cases, but instead affect all future filings, following their enactment. Look for the revised set of rules to be officially released sometime this summer, in advance of the official commencement of the Court’s upcoming term on October 3, 2022.