Rules of the Court Summary

  • Last updated on November 11, 2022

Internal guidelines adopted by the Supreme Court that set forth its jurisdictional and procedural processes.

The Supreme Court has operated by an internal set of rules since the first rulebook was adopted on February 3, 1790. Rule 1 established a clerk of the Court, requiring this person to reside at the seat of government but restricting him or her from practicing law while serving the Court. The rule even forbade the clerk from taking the original record of the Court out of the courtroom or from the office without an order from the Court. The early rules reflected the colonial experience of using the British high courts as a model. Rule 7 says “the Court will follow the practice as stipulated by the Courts of King’s Bench, and of chancery, in England.” The Court originally had several rules concerning equity and admiralty cases, once a large portion of its docket.

The Court’s internal rules stipulate how appeals proceed, the swearing in of counsel to the Court bar, and even particulars of appendices to briefs and filing fees. Rules of procedure have been modified as the role of the institution in American life altered. Over time the rules of the Court changed to reflect the current content and volume of the docket.

Dealing with the Workload

The first one hundred years of the Court saw the justices deciding federal appeals at about the same rate. After the Civil War, the volume of appeals to the Court rose dramatically. Congress responded in 1891 and again in 1925 by allowing the Court to determine what cases it would review. Again in 1997 discretion was granted to the justices to set their docket, so much so that by the late 1990’s the Court had almost complete discretion over what cases it hears or denies by writ of certiorari.

One of the more notable rules, the rule of fourRule of four, was adopted by the Court in 1925. This rule stipulates that if four of the nine justices want to take a case on appeal, it is placed on the docket for review. The justices have stated both in the rules of the Court and in other forums that the rule of four is strictly a procedural threshold, not a vote on the merits of a case. However, litigants realize when writing their briefs that they must convince at least four of the justices that their case is important enough for the Court to grant review. The result is that the procedural rule of four creates a strategic hurdle for litigants wishing to be heard.

Other rules of the Court have changed over time, again reflecting the rising workload of the Court and its increased importance as a governmental institution. For example, the length of time allotted for oral arguments has changed dramatically. When the Court first began operating, the time for oral argumentsOral argument was unrestricted. Lawyers would argue their side of the case, often going on for several days before yielding. Historians note that the local press at the time commented on the lengthy oral arguments in cases such as McCulloch v. Maryland[case]McCulloch v. Maryland[MacCulloch v. Maryland] (1819) and Dartmouth College v. Woodward[case]Dartmouth College v. Woodward[Dartmouth College v. Woodward] (1819). Oral arguments were a form of entertainment, and leading lawyers of the day such as Daniel Webster and Charles Lee were notable for their lively presentations in Court. By 1849 limitations were placed on counsel, giving each side two hours to present its case before the justices. In 1917 oral arguments shrunk to one and one-half hours for each side. In 1919 arguments were reduced to only one hour per side. By 1970 oral arguments were tightly controlled, giving only one-half hour to each side for presentation and argument. Oral arguments can still be entertaining, but the performance is a much briefer version than when the Court first began.

Changes in other rules such as the length of the Supreme Court’s term reflect the workload constraints on the justices. The timeliness of appeals, procedure for filing, the content of briefs, stipulations placed on the content of oral arguments as well as other rules have been altered over time in response to the volume of appeals and the importance of Court decisions in dispensing justice.

The rules of the Court reflect both statutes and custom in governing how the Court proceeds. They have contributed to the institutionalization of the Court and made its operation more efficient and effective.

Further Reading
  • Federal Criminal Code and Rules. St. Paul, Minn.: West Group Publishing, 2003.
  • Frankfurter, Felix, and James Landis. The Business of the Supreme Court: A Study of the Federal Judicial System. New York: Macmillan, 1928.
  • Hall, Timothy L., ed. The U.S. Legal System. 2 vols. Pasadena, Calif.: Salem Press, 2004.
  • Savage, David G., ed. Guide to the United States Supreme Court. 4th ed. Washington, D.C.: Congressional Quarterly, 2004.
  • Sterns, Robert L., and Eugene Gressman. Supreme Court Practice. Washington, D.C.: Bureau of National Affairs, 1969.
  • United States Supreme Court. Rules of the Supreme Court of the United States. Washington, D.C.: Author, 1997.

Briefs

Certiorari, writ of

Clerk of the Court

Dartmouth College v. Woodward

First Monday in October

Judiciary Acts of 1801-1925

McCulloch v. Maryland

Opinions, writing of

Oral argument

Webster, Daniel

Workload

Categories: History Content