SCOTUS Modifies Rule 29, Paper Briefs Can Be Filed Three Days After Timely Electronic Submission

This week, the Supreme Court updated its rules. Most attention focused on the new system to check for conflicts of interest. Merits briefs now need to include relevant stock ticker symbols for the parties. This step seems modest, but probably not worth the effort. Only two Justices hold stocks (Roberts and Alito). And they’ve somehow managed to recuse in all the cases they should have recused in. If any case slipped through, the potential conflict was likely unknown to anyone, which raises the question of whether there was a conflict! If a Justice doesn’t actually know that his ruling will help or hurt one of this financial interests, what is the problem? This rule imposes a new burden on litigants, followed by a new administrative burden to the Court, to potentially identify a near-null-set of cases that weren’t already flagged. I agree with Gabe Roth and others that Justices should not hold individual stocks. But Alito and Roberts apparently disagree.

The biggest change is one that does not seem to have garnered nearly enough attention. The Court modified Rule 29 to provide a new standard for a timely brief:

2. A document is timely filed: (1) if it is received by the Clerk in paper form within the time specified for filing; or (2) if it is sent to the Clerk through the United States Postal Service by first-class mail (including express or priority mail), postage prepaid, and bears a postmark, other than a commercial postage meter label, showing that the document was mailed on or before the last day for filing; or (3) if it is delivered on or before the last day for filing to a third-party commercial carrier for delivery to the Clerk within three calendar days; or (4) if it is properly submitted to the Court’s electronic filing system on or before the last day for filing. For a document submitted to the Court’s electronic filing system, required paper copies of the filing must be delivered or mailed to the Clerk through one of the methods in subsections (1)-(3) above within three days of the electronic submission….

Woah! I have long been a critic of the Supreme Court’s byzantine process for printing briefs. Under Rule 33, there are complex rules that govern the paper size, color, and binding for all briefs. These rules were waived in April 2020 during the pandemic, but were restored in July 2021. Most Courts of Appeals have eliminated the requirement to print copies of briefs, but SCOTUS is wedded to history and tradition.

Despite Rule 33’s persistence, the new Rule 29 has some virtue. The paper brief can be filed “three days” after the submission. And the briefs can now be “delivered” by hand or “mailed.” I think this change is significant.

First, I think this approach may add at least one more day to the briefing schedule. In the past, when I’ve worked with a printing company, I’ve had to submit the final brief to the printer one or even two days before the deadline, so there is enough time to print everything and deliver them before the close of business. Now, that time is eliminated. The electronic file can be sent to the printer closer to the electronic filing deadline. It can be filed electronically right before the deadline, and the printing can begin the next day.

Second, parties will no longer have to hire a courier to hand deliver a brief the same day it is filed. Instead, the brief can be filed electronically at the end of the day, then mailed overnight to the Court. I think this step will be a significant cost-saver. Moreover, printing companies may no longer need to keep agents in the nation’s capital.

Third, this step will avoid errors in the printed brief. This has happened to all of us. We scramble to submit a brief, send it to the printer, and as soon as it is filed, we notice an error. Don’t lie. This has happened to you. It happened to me. I called the Supreme Court Clerk’s office, and they offered to print out a white label, and place it over the error in the brief. That was an easy-enough fix. But in more extreme cases, it may be necessary to reprint the entire brief, at significant cost. Now, after the brief is filed at the deadline, it can be reviewed calmly, and any minor nits or errors can be fixed, before it goes to the printer. And presumably, a corrected electronic brief can be filed as well. Of course, this approach lets the parties change filings for up to three days after it is filed. But on balance, it is a good change.

The Supreme Court is taking some serious, positive actions of late. Dare, I say hail to the Chief?