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U.S. Supreme Court Brief Writing Style Guide: Part 2 - General Considerations and Prefatory Sections

NAAG Center for Supreme Court Advocacy

In the February issue of the NAGTRI Journal, I discussed what a cover page and the Questions Presented section in a U.S. Supreme Court brief should look like. In this second part of my series on U.S. Supreme Court brief writing style, I will take a step back and a step forward. Stepping back, I will discuss some big picture issues concerning Supreme Court style. Then I will turn to the parts of the brief that follow the Questions Presented.

Topic 1: General Rule — Ditch Local Idiosyncrasies

In some courts, an advocate begins oral argument by stating her name and who she represents and reserving rebuttal time. In other courts, the advocate dives right into the argument. Some courts expect argument to begin with a review of the facts. Other courts want their advocates to go straight to the legal issue. So the answer to the question “How should I begin my oral argument” is: “It depends on the customs and practices of the particular court before which you are practicing.” An obvious corollary is that you should not adhere to a custom your local courts observe if you are appearing in a court outside your jurisdiction that operates differently.

The same, of course, holds true when it comes to writing briefs in the U.S. Supreme Court. You should eliminate local idiosyncrasies and adopt the Supreme Court’s own idiosyncrasies. Here are some examples of local idiosyncrasies to eliminate:

  • Many courts require that briefs begin with a Statement of the Case that sets out the procedural history, followed by a Statement of the Facts that describes the factual background. See, e.g., N.C. R. App. P. 28(b)(3), (4). Not the U.S. Supreme Court, which expects one Statement, typically called the Statement of the Case. And that Statement typically describes the facts before the procedural history.
  • Some courts have adopted legal-writing guru Bryan Garner’s suggestion that all citations be placed in footnotes. The U.S. Supreme Court has not.[1]
  • Limit the use of block quotes. The occasional, relatively short, block quote is fine. Inserting block quote after block quote is not. Nor should any block quote take up more than half a page. As Justice Scalia and Bryan Garner have written, “Be especially loath to use a lengthy, indented quotation. It invites skipping. In fact, many block quotes have probably never been read by anyone.”[2] The solution is to set out the underlying facts or reasoning in your own words, with an occasional one- or two-sentence quote as needed.
  • I have read dozens of briefs from non-AGO Louisiana attorneys that refer to the Court as “this Honorable Court” — as in, “This Honorable Court held in Katz v. United States, 389 U.S. 347 (1967), that electronic wiretaps are searches under the Fourth Amendment.” Maybe Louisiana courts like to hear themselves referred to as “honorable.” But this stilted language is out of place in the U.S. Supreme Court. Meanwhile, New Jersey courts apparently demand that lawyers, when citing statutory codes and case reporters, italicize the codes and reporters — e.g., 42 U.S.C. §1983 or 389 U.S. 347. That idiosyncratic citation style has no place in the U.S. Supreme Court.
  • Some courts still expect case names to be underlined, rather than italicized. With one exception, case names in U.S. Supreme Court briefs are italicized.[3]

How can you tell what flies and what does not fly in U.S. Supreme Court briefs (apart from this manual)? Simple: Read briefs filed by the U.S. Solicitor General’s Office and by top Supreme Court practitioners. Myriad such briefs are available on-line, at the Solicitor General’s webpage and on SCOTUSBlog. You can also take a look at The Solicitor General’s Style Guide (2d ed. 2015), which provides that office’s citation and style rules.

Topic 2: Some U.S. Supreme Court-Specific Styles

The Court’s rules mandate what font to use (the Century family), how many words a brief may contain, and so on. My goal is to go beyond what is in the rules and to discuss unwritten customs. Before turning to specific sections of a U.S. Supreme Court brief, it’s worth recounting a few Court-specific styles that cut across many sections.

  • Do not refer to the Court as “the Supreme Court,” as in “the Supreme Court has held that . . . .” Write “the Court held”; “this Court held”; or “Grutter held . . . .”
  • Citations to U.S. Supreme Court opinions should be to the official U.S. Reporter, without any parallel citations to the unofficial (S. Ct. and L. Ed.) reporters. The proper cite, therefore, is Roe v. Wade, 410 U.S. 113 (1973) — notRoe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). If the decision is not yet included in the official reporter, use the S. Ct. (and only the S. Ct.) cite.
  • Do not refer to the lower court decisions in your very case by the case name. Let’s say, for example, that you’re seeking certiorari from the Ninth Circuit’s decision in Smith v. Jones. The cert petition should not say, “The Ninth Circuit held in Smith v. Jones that . . . .” That’s like my saying, “Dan thinks that’s a good idea.” It sounds wrong to the ear (at least the ear of a regular Supreme Court practitioner). The better style is to say, “The Ninth Circuit held below that . . .,” or simply “The Ninth Circuit held . . . .”
  • Similarly, the case name should not appear when citing the lower court decisions in your very case. Nor should you cite the reporters, federal or regional. Rather, cite only the cert petition appendix — which, of course, contains the lower court decisions. Thus, the proper cite (in, say, a merits brief) is “Pet. App. 17a,” not “Smith v. Jones, 473 F.3d 1234 (9th Cir. 2008); Pet. App. 17a.” (In the cert petition itself, the cite would be “App. 17a” or “App., infra, 17a.”) 
  • When referring to a specific federal court of appeals, do not include the words “Court of Appeals.” It’s therefore, “the Ninth Circuit held,” not “the Ninth Circuit Court of Appeals held . . . .”

Now, let’s walk through some of the sections of a Supreme Court brief, starting with the Prefatory Sections.

Topic 3: The Prefatory Sections

The Prefatory Sections include Parties to the Proceeding; Table of Contents; Table of Authorities; Opinions Below; Jurisdiction; and Constitutional and Statutory Provisions Involved. With one important exception, these sections are not important in the scheme of things. They won’t convince a Justice to vote your way. Still, the goal of this style guide is to help your petitions read and look the right way. With that in mind, let’s turn to these sections.

A. Parties to the Proceeding

This section is needed only if the cover page does not include all the parties. If, for example, the only parties are the state and a criminal defendant, both of whose names must appear on the cover page, you do not need to have a Parties to the Proceeding section. And when you don’t need this section, I see no reason to include it.

When you do include this section, try to make it as simple as possible. For example:

PARTIES TO THE PROCEEDING

Petitioners Terry L. Cline, Lyle Kelsey, and Catherine C. Taylor were the appellants in the court below. Respondents are Oklahoma Coalition for Reproductive Justice and Nova Health Systems, doing business as Reproductive Services, and were appellees in the court below.

Or, in a case with more parties (United States v. Texas, 15-674):

PARTIES TO THE PROCEEDING

Petitioners were appellants in the court of appeals. They are: the United States of America; Jeh Charles Johnson, in his official capacity as Secretary of Homeland Security; R. Gil Kerlikowske, in his official capacity as Commissioner of U.S. Customs and Border Protection; Ronald D. Vitiello, in his official capacity as Deputy Chief of U.S. Border Patrol, U.S. Customs and Border Protection; Sarah R. Saldaña, in her official capacity as Director of U.S. Immigration and Customs Enforcement; and León Rodríguez, in his official capacity as Director of U.S. Citizenship and Immigration Services.

Respondents were appellees in the court of appeals. They are: The State of Texas; State of Alabama; State of Georgia; State of Idaho; State of Indiana; State of Kansas; State of Louisiana; State of Montana; State of Nebraska; State of South Carolina; State of South Dakota; State of Utah; State of West Virginia; State of Wisconsin; Paul R. LePage, Governor, State of Maine; Patrick L. McCrory, Governor, State of North Carolina; C.L. “Butch” Otter, Governor, State of Idaho; Phil Bryant, Governor, State of Mississippi; State of North Dakota; State of Ohio; State of Oklahoma; State of Florida; State of Arizona; State of Arkansas; Bill Schuette, Attorney General, State of Michigan; State of Nevada; and the State of Tennessee. [Footnote omitted.]

B. Table of Contents

The Table of Contents is the one exception to my earlier comment that these prefatory sections are not important. In Supreme Court briefs, as in all appellate briefs, a Table of Contents can be quite important. It serves as a de facto summary of argument, telling the reader up front not only what you will be arguing but also why your position is correct.

Any discussion of what a Table of Contents should look like is really a discussion of how to craft the headings of sections and subsections in the Statement of the Case and Argument. At the risk of going out of order (since we’re not yet up to the Statement and Argument), here are some general rules for headings in Supreme Court briefs. 

  • In the Argument section, a heading should be a complete sentence that makes a positive point for your position. It should not be a word or phrase, such as “Introduction” or “Application of Balancing Test.” (By contrast, an introduction placed at the beginning of the brief may be called “Introduction.”)
  • A heading should never be more than one sentence. If you think you need two sentences to convey the argument being made in the section, think again.
  • At the same time, that one sentence should not be unduly long. The Table of Contents as a whole should summarize your argument, but no individual heading needs to do so. For example, the heading to Section I in the opening brief in Michigan v. Bryant, 131 S. Ct. 1143 (2011), is too long:
  1. Preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” that emergency including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual.
  • Do not put headings in all caps. As the Seventh Circuit’s Requirements and Suggestions for Typography in Briefs and Other Papers says, headings written in all-caps “are very hard to follow.”

C. Table of Authorities

As far as I can tell, there are no Supreme Court-specific rules when it comes to this table. Most practitioners begin with cases, and include both federal and state cases together; then move on to constitution, statutes, and regulations (though these are occasionally separated out); and then provide “other authorities.” 

D. Opinions Below

Cert petitions and petitioner’s opening merits brief must contain this section. Here are a few examples of cert petitions that simply and directly present the lower court opinions, each slightly different than the others:

Case 1: Puerto Rico v. Franklin California Tax-Free Trust, 579 U.S. ___ (2016)

The First Circuit’s decision has not yet been published in the Federal Reporter, but is reported at 2015 WL 4079422 and reprinted in the Appendix (“App.”) at 1-68a. Similarly, the district court’s opinion has not yet been published, but is reported at 2015 WL 522183 and reprinted at App. 69-137a.

Case 2: United States v. Bryant, 579 U.S. ___ (2016)

The opinion of the court of appeals (App., infra, 1a- 16a) is reported at 769 F.3d 671. The oral ruling of the district court denying respondent’s motion to dismiss (App., infra, 32a) is unreported.

Case 3: Johnson v. Lee, 578 U.S. ___ (2016)

The opinion of the court of appeals (App. 1a- 20a) is reported at 788 F.3d 1124. A previous opinion of that court (App. 72a-74a) is unpublished, as are the most recent opinion of the district court denying habeas relief (App. 21a-25a), the related report and recommendation of the magistrate judge (App. 26a-71a), an earlier opinion of the district court (App. 75a-76a), and the magistrate’s report related to that opinion (App. 77a-130a). The orders of the California Supreme Court (App. 131a), the California Court of Appeal (App. 132a-133a), and the Superior Court for Los Angeles County (App. 134a-135a) denying Lee’s state habeas petitions are also unpublished, as are the opinion of the California Court of Appeal affirming Lee’s conviction (App. 137a-162a) and the order of the California Supreme Court denying review on direct appeal (App. 136a).

Case 4: Maryland State Comptroller of the Treasury v. Wynne, 575 U.S. ___ (2015):

The opinion of the Court of Appeals of Maryland is reported at 431 Md. 147. App. 1-52. The opinion and order of the Circuit Court for Howard County are unreported. App. 53-129. The order and oral ruling of the Maryland Tax Court also are unreported. App. 130-41.

A few things to note about listing of opinions below:

  • The opinions are listed in reverse chronological order (i.e., beginning with the federal court of appeals or state appellate court decision for which review is sought).
  • You do not need to provide the case names. The Supreme Court knows that (with one exception discussed below) the opinions all involve this case.
  • The exception is that, in federal habeas corpus cases, you should provide the citations to the relevant state-court decisions. (Technically, it was a different case in state court. A direct appeal of a state conviction is part of the criminal case; federal habeas corpus cases are, of course, civil cases that collaterally challenge the criminal conviction.) This is particularly important where the issue is whether the federal courts of appeals violated AEDPA when it held that a state court unreasonably applied clearly established law. The Supreme Court can assess that issue only by reviewing the state-court decision. You therefore want to provide it in the appendix to the cert petition; and therefore must list it in the Opinions Below section.
  • Descriptions of the opinions are generally not needed. So in a First Amendment case, you do not need to write: “The Eighth Circuit’s decision holding that [State] Code §1234 violates the First Amendment is reported at . . . .”
  • Denials of rehearing applications are not listed in Opinions Below. Rather, they are set out in the Jurisdiction section, to which we now turn.

E. Jurisdiction

    Once again, the goal is to be simple and direct. The section generally begins with the key dates relevant to jurisdiction, followed by the statutory basis for jurisdiction. That means the section should set out the date on which the decision under review was entered; followed by the date on which any petition for rehearing was denied; followed by any extension(s) the Circuit Justice may have granted; followed by the statutory basis for Supreme Court review. That’s it.

    For example, from the United States’ cert petition in Department of Transportation v. Association of American Railroads, 575 U.S. ___ (2015):

    JURISDICTION

    The judgment of the court of appeals was entered on July 2, 2013.

     A petition for rehearing was denied on October 11, 2013 (App., infra, 51a-52a). On December 31, 2013, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including February 7, 2014. On January 28, 2014, the Chief Justice further extended the time to March 10, 2014. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

    When the petition seeks review of a federal court of appeals decision, the Supreme Court’s jurisdiction is being invoked under 28 U.S.C. §1254(1); when the petition seeks review of a state-court decision, the Court’s jurisdiction is being invoked under 28 U.S.C. §1257(a).

    When a petition seeks review of a state-court judgment, the question often arises whether that judgment is final — a prerequisite to Supreme Court jurisdiction. Some practitioners prefer to tackle the issue head-on in the Jurisdiction section. If that’s your approach, make it short and sweet. For example, this is what Ohio wrote in its petition in Ohio v. Clark, 135 S. Ct. 2173 (2015), which sought review of an Ohio Supreme Court decision reversing a conviction based on a purported Confrontation Clause violation:

    JURISDICTIONAL STATEMENT

    The Supreme Court of Ohio entered its judgment in this case on October 30, 2013. The State filed a motion for reconsideration, which was denied on December 24, 2013. On March 13, 2014, Justice Kagan granted a 45-day extension of time to file this petition for writ of certiorari until May 8, 2014. The State of Ohio invokes the Court’s jurisdiction under 28 U.S.C. § 1257. The Supreme Court of Ohio’s decision qualifies as a “[f]inal judgment or decree[]” within the meaning of that statute. Id.; seeMichigan v. Bryant, 131 S. Ct. 1143, 1151-52 (2011) (granting review when state supreme court found Confrontation Clause violation and remanded for new trial); see alsoKansas v. Marsh, 548 U.S. 163, 168 (2006); New York v. Quarles, 467 U.S. 649, 651 n.1 (1984).

    F. Constitutional and Statutory Provisions Involved

      This section, too, must be included in cert petitions and the opening briefs for petitioners. You have two options: to present some or all of these provisions in the body of the brief or to put them in an appendix. Both approaches are acceptable to the Court. Which one you take depends on the provisions’ length and whether the case turns on a particular provision, the precise phrasing of which you may wish to set out in an easy-to-find place at the beginning of the brief.

      My rule of thumb is that you don’t want this section to be longer than three pages. I’ve read briefs where the Statement of the Case doesn’t begin until page 8 because of a very long Constitutional and Statutory Provisions Involved section. That’s not how your brief should begin. 

      Feel free to use ellipses liberally to keep this section concise. In a recent cert petition raising a Confrontation Clause issue (Kansas v. Carr, 577 U.S. ___ (2016)), Kansas set out the relevant constitutional provision as: 

      The Sixth Amendmentto the United States Constitution provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …” U.S. Const. amend. VI.

      Similarly, if an AEDPA case involves 28 U.S.C. §§2254(d)(1) and (e)(1), include only those subsections, not the entirety of §2254. 

      Also: The only provisions that must be included are those that are directly relevant to the question presented. If, for example, the case involves the meaning of the AEDPA statute of limitations, you do not need to provide the state criminal statute the defendant was convicted of violating. That statute has nothing to do with the issue you are presenting to the Court.

      That’s all for now. Stay tuned for the next and final part of this series, which will cover the remaining sections of a Supreme Court brief.

      [1] See Antonin Scalia and Bryan Garner, Making Your Case: The Art of Persuading Judges 133-35 (Thomson/West 2008), (Justice Scalia expressing his disapproval of Bryan Garner’s suggestion that citations be placed in footnotes).

      [2]Id. at 128. Every rule has its exceptions, of course. For example, in the rare case it is helpful to include a long passage from a trial or hearing transcript.

      [3] The exception is in briefs filed on 8½ x 11 inch paper, rather than the usual (for the Court) 6⅛ x 9¼ booklet. For state attorneys, that means briefs in opposition to in forma pauperis cert petitions. In such briefs, either underlining or italics are acceptable.

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