Supreme Court Rule 28.8 may be invalid

February 10

The Supreme Court recently codified a rule — apparently reflecting its longstanding practice — that you can only orally argue before the court if you are a lawyer. That is, if your case gets to the Supreme Court, you don’t have a right to argue it pro se (unless you happen to also be a lawyer, like Alexia Morrison or Michael Newdow).

It’s revised Rule 28.8:

Oral arguments may be presented only by members of the Bar of this Court. Attorneys who are not members of the Bar of this Court may make a motion to argue pro hac vice under the provisions of Rule 6.

The rule makes a lot of sense to me, but I’m not sure that the rule is legal. A federal statute, 28 U.S.C. 1654, says:

In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.

(A separate section affirms that the U.S. Supreme Court is a “court of the United States.”)

Normally, a federal statute is higher in authority than something like a court rule, so on its face, Section 1654 seems to give litigants in the Supreme Court a right to orally argue their own cases. What, then, explains the new rule? I’ve thought of three possibilities:

Possibility 1: The right to “plead and conduct their own cases personally” does not include the right to oral argument.

I could imagine trying to argue that so long as a party is allowed to “conduct” his case by writing his own papers or telling his lawyer what to do, the statute hasn’t been violated. But that seems like a stretch to me. The right to “plead and conduct” your case “personally” most naturally reads as the right to do the things your lawyer would otherwise do on your behalf. Conducting oral argument is part of conducting your case, so if your lawyer can argue, you get to argue. [I've done some preliminary research on the history of this provision, which dates back in one form or another to Section 35 of the 1789 Judiciary Act, but I may well have missed something about how this language has been interpreted.]

Possibility 2: The statute is unconstitutional.

I could imagine arguing either that the rule exceeds Congress’s powers under the Necessary and Proper Clause, or that the Supreme Court specifically has some constitutional authority to ignore procedural statutes because the Supreme Court is special. The Necessary and Proper argument has some formal plausibility, but statutes regulating court procedures date all the way back to the Founding and were endorsed by the Supreme Court in Wayman v. Southard in 1825 (“It certainly will not be contended, that this might not be done by Congress”).

As for the “Supreme Court is special” argument, a few years ago Chief Justice Roberts and Justice Souter suggested that the court has exclusive authority to decide procedures in original jurisdiction cases. (Here is further analysis from Stephen McAllister.) But that opinion relied on language in Article III under which:

Our appellate jurisdiction is, under the Constitution, subject to “such Exceptions, and . . . such Regulations as the Congress shall make.” Art. III, §2. Our original jurisdiction is not.

That analysis would suggest that Section 1654 can be applied in appellate cases, which make up about 99 percent of the court’s argument docket.

Possibility 3: The Supreme Court was unaware of the statutory requirement.

It could simply be that nobody realized that Section 1654 might apply. I haven’t seen it mentioned in discussions of the new rule.

Now, is this a purely theoretical question? Wouldn’t it be foolish to argue your own case in front of the Supreme Court? Maybe so, but a couple of litigants in past decades have chosen to argue their own Supreme Court cases. And just last term, one litigant pressed the court for the right to argue his own case. (He was told no, and I assume that incident is the occasion for the new rule.)

Again, I think there could be perfectly sensible reasons for the court’s rule. As oral arguments become more extensively covered in the institutional press and on the internet, there might be increasing reason to want to stop oral argument from being used as an unhelpful performance. But unless I am missing something, it seems to me that Congress would need to modify Section 1654 for Rule 28.8 to be permissible.

Thanks to my friend Steve Sachs for first raising this question to me.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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