The Supreme Court first adopted rules to govern its activities in 1790. Since then, the Court has made numerous revisions, of which the latest set became effective on 1 May 2003. The Court's power to establish these rules is provided under Title 28, section 2071, of the U.S. Code. Rule changes may be requested by members of the bar, by committees that the Court occasionally creates expressly for that purpose, or simply at the initiative of one or more of the justices. Traditionally, the justices agree on the rules by consensus rather than by a strict majority‐rule vote. The Court publishes revisions of the rules in the United States Reports. Attorneys practicing before the Court should obtain the most recent version because revisions change rule numbers and contents.
Currently, forty‐eight rules, some long and complicated, govern the Court's operations. They range from expressions of broad principles (e.g., who may file an amicus curiae brief [rule 37] and how to apply for a writ of certiorari [rule 12]) to specific details (e.g., the days and hours when the Court will hear oral argument [rule 4], and the length, paper, type size, and color coding of petitions, briefs, and other Court documents [rule 33]). The rules discuss court officers and bar membership (rules 1–9), the Court's jurisdiction (rules 10–20), forms and procedures for attorneys to follow (rules 20–40), and finally the actions that the Court and litigants may take once a case has been decided (rules 41–46).
The first group of rules guides the conduct of Court officers. For example, rules 1 and 2 describe the duties and responsibilities of two of the Court's statutory officers, the clerk and the librarian. Rule 5 stipulates that in order to be admitted to the Supreme Court bar, an attorney must have been licensed to practice before the highest court in his or her state for at least three years (see Admission to Practice before the Bar of the Court).
Another set of rules addresses the circumstances under which the Court may assume jurisdiction. Rule 10 describes the considerations governing review on a writ of certiorari. These writs, the most common type of review of lower court decisions, are granted entirely at the Court's discretion. Rule 17 explains original jurisdiction, those few cases in which the Supreme Court must act as a trial court, as delineated in Article III of the United States Constitution. Rule 18 addresses the other commonly invoked jurisdiction, direct appeal, an appeal that the Court is required to consider (see Appellate Jurisdiction). Direct appeal can be made only in cases involving federal laws that specifically provide for it. Rule 20 explains extraordinary writs by which one justice or the entire Court may issue temporary restraining orders to prevent damage to litigants while appeals are pending.
The rules also explain the procedures to be followed by attorneys in Court proceedings. For every type of document, they detail the required format and contents as well as deadlines, page limitations, and fees for each filing (rules 33, 38). Rule 39 waives fees and certain other requirements in cases involving indigent litigants. Many rules address important procedural details, including the steps for translating documents in foreign languages, the proper use of diagrams, and technical specifications for typesetting briefs (rules 31–33).
Other rules give attorneys advice and suggestions rather than requirements. For example, rule 37 contains an emphatic caution that amicus curiae briefs be submitted only when they add relevant material not already brought to the Court's attention. Rule 10 explains that the Court will be more inclined to grant requests for certiorari when a decision will resolve conflicting rulings from different circuit courts of appeals or involves an “important question of federal law” not yet addressed by the Court. Rule 32.3 limits submission of nonrecord material.
A final group of rules discusses what happens after the Court decides a case. Rules 42 and 43 explain the calculation of interest payments on damage awards and the allocation of Court costs to the losing party. Rule 44 describes the procedure to petition for rehearing after a decision, a request seldom granted by the Court.
Bibliography
- Bennett Boskey and Eugene Gressman, The Supreme Court's New Rules—Model 1995,
Federal Rules Decisions 164 (1995): 80–95
— Lawrence H. Averill
