Last week I posted about a potential problem with the Supreme Court’s new rule 28.8, which requires you to be a lawyer to orally argue your case in front of the Court.

The problem is that the rule seems to contravene a federal statute, 28 U.S.C. 1654, which says that “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.” I explored several possible explanations for the rule.

Here are a few others that have come up:

1: What about the Rules Enabling Act?

Many readers wondered if the Supreme Court Rule might be allowed to trump Section 1654 because of 28 U.S.C. 2072, which says that “All laws in conflict with such rules shall be of no further force or effect.” But Section 2072 (“such rules”) only applies to “rules … for cases in the United States district courts … and courts of appeals.” Supreme Court Rules are governed by the preceding section, 2071, which says “Such rules shall be consistent with Acts of Congress.” I’m not aware of any other provision that would allow the Supreme Court Rules to trump a federal statute.

2: Does the greater include the lesser?

Some readers suggested briefly that if the Court’s exercise of jurisdiction is discretionary, it follows that statutes can’t or don’t apply to it. That seems to me implausible. Sometimes a greater power includes a lesser power and sometimes it doesn’t. The more natural structure is to assume that the Supreme Court doesn’t have to take a case, but if it does choose to, it has to decide it in the normal way. For instance, I take it that nobody thinks that the Supreme Court is entitled to ignore substantive constitutional provisions (like the First Amendment) or substantive statutes (like the Civil Rights Act) when exercising its certiorari jurisdiction. But maybe I am missing something with this argument, which I hadn’t heard before.

3: What about all that stuff after the comma?

Section 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.” The second half of that sentence is a little confusing, and some readers wondered if it means that you can only practice pro se if the court’s rules let you. I don’t think that’s right, for a few reasons.

First, as a textual matter, the clause modifies “counsel.” The phrase is “as … are permitted,” and one can sensibly refer to “such counsel as are permitted,” but not to “personally as are permitted” (because the verb “are” doesn’t work with “personally”).

You might try to read “as are permitted” all the way back to modify “parties” but then it can no longer modify “counsel,” (because the “or” is in the wrong place) and that just doesn’t make sense as a matter of regular English. So while the provision is confusing, I think if you sit down and start parsing it, you won’t think the second clause limits a party’s right to proceed personally.

Second, as a historical matter, the clause seems to have been intended (and has generally been thought) to guarantee a right to self-representation. It would not do that very effectively if it left the right to self-representation up to the court’s permission.

Third, in Price v. Johnston (1948), the Supreme Court discussed a prior version of the statute that had essentially the same language, including the stuff after the comma. The Court explained that prisoners do not have an absolute right to argue their own appeals, but its reasoning bolstered an “otherwise unqualified” reading of the right:

Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. Among those so limited is the otherwise unqualified right given by Section 272 of the Judicial Code, 28 U.S.C. 394, to parties in all the courts of the United States to ‘plead and manage their own causes personally.’ To the extent that this section permits parties to conduct their own oral arguments before appellate courts, it must be modified in its application to prisoners.

All that said, I did come across a passage in Martinez v. Court of Appeal of California (2000) that suggests a more restrictive reading of the statute. That case dealt with whether a criminal defendant has a constitutional right to represent himself in state court when appealing his conviction. But the Court looked to the original provision of the Judiciary Act, because that had been previously been held to be informative about the scope of the Sixth Amendment right. And it said:

The scant historical evidence pertaining to the issue of self-representation on appeal is even less helpful. The Court in Faretta relied upon the description of the right in § 35 of the Judiciary Act of 1789, 1 Stat. 92, which states that “the parties may plead and manage their own causes personally or by the assistance of such counsel….” 422 U.S., at 812, 95 S.Ct. 2525. It is arguable that this language encompasses appeals as well as trials. Assuming it does apply to appellate proceedings, however, the statutory right is expressly limited by the phrase “as by the rules of the said courts.” 1 Stat. 92. Appellate courts have maintained the discretion to allow litigants to “manage their own causes” — and some such litigants have done so effectively. That opportunity, however, has been consistently subject to each court’s own rules.

This passage seems to say that the statutory right to conduct your own case is limited “by the rules of the said courts” (and may not even apply on appeal!).

Now, Martinez is a somewhat uncertain basis for the Court’s new rule for several reasons: First, the Court is only discussing the Judiciary Act, not the current version of the statute. Second, this is a classic example of dicta; in a case about the scope of the Sixth Amendment, the Court made a claim about the meaning of a federal statute, even though it wasn’t at issue. Third, it was unargued dicta; I looked through the briefs in Martinez, and while there were a few references to the statute, none of the parties suggested that courts have the power to regulate or trump the right. Fourth, it is unsupported dicta; the Court provides no citations or authority for its claim that federal courts can stop parties from proceeding pro se (perhaps this is related to point three). And fifth, of course, I think it is probably a misreading of the statute for the reasons I gave above.

All of that said, this now strikes me as the most plausible reason the Court could have for believing that Rule 28.8 is permissible. And maybe it will turn out to be correct upon further investigation. But this still strikes me as quite legally questionable, and I hope that the Court will be open to eventually considering the issue — either in a motion by a lay party (not a prisoner!) who wishes to proceed pro se, or in response to a formal request to change the rule — unless Congress amends the statute.