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Supreme Court’s Proposals Would Affect Recusals, Word Counts

Nov. 1, 2018, 8:46 PM

The U.S. Supreme Court’s proposed changes to help justices make decisions about recusals would be welcome, court watchers told Bloomberg Law Nov. 1.

But proposals to reduce the maximum word count for briefs received mixed reviews from appellate practitioners, with some calling the proposed changes “challenging.”

Comments about the proposals are due to the Supreme Court clerk by Nov. 30.

The revisions would require parties to a case at the court to identify “any trial and appellate court cases that are directly related” to that case.

This proposal “is designed to assist the Justices in determining whether their participation in a case before joining the Court might necessitate recusal,” the court said in a press release Nov. 1.

The rule is aimed at the problem of cases working their way to the high court “via circuitous means, often with name changes or under the caption of related cases that do not clue the justice in that he or she presided over the lower court matter,” Professor Charles Gardner Geyh said. Geyh teaches at Indiana University Bloomington’s Maurer School of Law, and his scholarship includes judicial conduct and ethics.

“In the last few years, there have been a half dozen instances in which a justice has failed to recuse despite a clear conflict, and these missed recusals have been a source of ongoing embarrassment for the justices,” Gabe Roth, executive director of Fix the Court, an organization that promotes Supreme Court transparency, told Bloomberg Law by email Nov. 1.

The change would “have limited application” but “makes good sense,” Stephen Gillers, a professor at New York University School of Law who focuses on regulation of the legal profession, told Bloomberg Law by email Nov. 1.

It would be more helpful to “new justices recently promoted from a lower court,” such as Justices Neil M. Gorsuch and Brett M. Kavanaugh, Gillers said. “It gives them information that might indicate a need to recuse and of which they might otherwise be unaware.”

The rules would only assist justices in deciding whether to recuse themselves and wouldn’t require them to do so, Louis J. Virelli, a professor at Stetson University law school, Gulfport, Fla., who has written about Supreme Court recusals, told Bloomberg Law by telephone Nov. 1.

Virelli said that justices are never required to recuse themselves “other than by the due process clause” of the U.S. Constitution. That’s partly because the justices aren’t replaceable, and recusals can have consequences that reach broader than the parties, he said.

Word Counts

Another proposal would reduce the word limits for most briefs, including a reduction from 6,000 to 4,500 words for reply briefs.

“That is a substantial reduction in a word count that many practitioners already find challenging,” Sean Marotta of Hogan Lovells, Washington, told Bloomberg Law by email Nov. 1.

The proposed reduction from 15,000 to 13,000 words for merits briefs is also a significant change, Marotta said. That’s the same amount of words that “parties get in the courts of appeals.”

Making that limit “consistent with the general federal appellate rules” makes sense, Raffi Melkonian of Wright Close & Barger, Houston, told Bloomberg Law by email Nov. 1.

But we have already “seen the reduction of length limits in federal appellate courts,” and “it’s a challenge,” Kendyl Hanks of Greenberg Traurig, Austin, Tex., told Bloomberg Law by email Nov. 1.

Brevity “is a hallmark of a well-written brief,” but the proposed reductions seem arbitrary, “particularly where so much is at stake” in high court cases, Hanks said.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at