You can’t get any higher than supreme. So when the public gets a glimpse into the inner workings of the Supreme Court, it’s a big deal.
That just happened. The Supreme Court’s Style Guide, Amazon’s #1 new release in legal writing, can now be yours. The introduction to the guide says as much:
What you’re holding is special. And until now, it has been secret.
We have editor Jack Metzler to thank for the release. He’s the guy who brought us The Solicitor General’s Style Guide: Second Edition.
The guide has been a secret for quite a while, and Supreme Court practitioners have been trying to get their hands on it:
The Court’s website suggests that it is “frequently asked” whether it has “a style manual for writing briefs,” and for advice “as to how the Supreme Court would cite to a particular document.”
The Court’s answer was lawyerly: “The Supreme Court does not have a style manual for advocates before the Court.” True, because this style guide was prepared by the Office of the Reporter of Decisions “for use in the preparation of opinions of the court.”
The guide was more direct with its select audience, informing them that “[c]opies will be numbered and charged to those staff members to who they are issued.”
Now, we get to read it.
Must We Curb Our Enthusiasm?
Some of you don’t care about what the guide says about things like citing unpublished online materials, the proper use of supra, or whether you write attorneys’ fees or attorney’s fees.
Fine. You can compare the Supreme Court’s guide with with some of the other leading guides in this handy table and be on your way. The rest of you can read on.1
|Guide||Font||Space After Sentence||Citations in Footnotes||Thin Space||Proportional Font||Oxford Comma|
|The Supreme Court's Style Guide||Not addressed||Em space||No||Thin space||Optional||Not addressed|
|7th Circuit's Typography Requirements||Century recommended||Single||Long footnotes discouraged||Not addressed||Highly recommended||Not addressed|
|Typography for Lawyers||Century, Century Schoolbook, or Century Gothic (detailed below)||Single||No position||Non-breakable space||Yes||Not addressed|
|Bluebook||Not addressed||Not directly addressed, but single space in Bluebook itself||Ambiguous||Not addressed||Not addressed||Not addressed|
|The Solicitor General's Style Guide||Century||Em space||Appears to reject||Not addressed||Optional||Not addressed|
One Guide to Bind Them
This guide doesn’t tell us everything about how the Supreme Court decides cases, so let’s not get ahead of ourselves:
This book is concerned only with the final step of the Court’s decision making—what happens after the decisions are written but before they are released—and it peels the shroud of secrecy back only slightly.
In short, the guide binds the Reporter of Decisions as she prepares “the Court’s opinion for release to the public and for publication in the United States Reports.”2
As you’ll see, the guide tells us a lot more than how to cite check a draft opinion.
Tangled Up in Blue(book)
The Bluebook Uniform System of Citation has been in the news a lot lately, especially after Carl Malamud and Public Resource published the open source and freely available Baby Blue’s Manual of Legal Citation.
While the Supreme Court’s guide expresses no opinion about the Bluebook’s business model, it does have a complicated relationship with the Bluebook’s system of citation. The Supreme Court’s guide notes the Bluebook “provides a useful reference for rules governing citations of types of materials not covered in this Style Manual,” but “caution[s] that this Style Manual frequently deviates from Bluebook style.”
Likewise, the U.S. Government Printing Office Style Manual is “generally useful for points of style not covered” in the guide but “frequently deviates” from it on points that the guide covers.
The (Em) Space Between
Legal-writing nerds have been bemoaning lawyers’ use of two spaces after a period for years. Will the Supreme Court come to their aid?
Not really. But the editor of the guide did us all the service of pointing out the Supreme Court’s “peculiar spacing conventions.”
The first peculiarity is the em space, which is a “space that is the width of a capital M.” If this sounds familiar, that might be because The Solicitor General’s Style Guide: Second Edition informed the public that the Solicitor General’s Office is now using the em space.
There’s good news and bad news about the Court’s em-space usage. The good news is the Court doesn’t use two spaces after a period. The bad news is that one em space is bigger than two regular spaces:
— Brendan M. Kenny (@KennyBrendan) November 25, 2015
This would be much less complicated if the Supreme Court would leave grammatical exile and bring itself to love the single space. Seems hard to argue with this reasoning:
But mostly, one space is a well-settled custom of professional typographers. You don’t need to like it. You only need to accept it.
—Matthew Butterick, Typography for Lawyers
The legal writing community is pretty evenly divided on putting citations in footnotes for briefs, and this poll seems to reflect that division:
— Brendan M. Kenny (@KennyBrendan) November 9, 2015
Bryan Garner, Justice Don Willett, and Judge Dillard make up some of the most prominent members of the Twitter pro-footnote faction. While the faction pushed hard, they ultimately came up short on Twitter.
In any event, the Supreme Court does not like citations in footnotes. As we now know, Jack Metzler had the inside scoop:
— Supreme Court Places (@SCOTUSPlaces) November 10, 2015
As Metzler notes, the guide “takes a strong position against confining all citations to footnotes, a position against confining all citations to footnotes, a position surely destined to become a major source in the ongoing debate on this subject.”
The guide’s first sentence on the subject leaves little doubt about where the Supreme Court stands:
Certain legal writing “experts” suggest that all citations be placed in footnotes in order to make judicial opinions more readable for the general public. The Reporter feels that such advice is misguided. The public will not be inclined to read most opinions no matter what gimmicks are used to try to make them generally accessible.
The guide goes on to provide these reasons for its rejection of the “all-citations-in-footnotes style”:
- Supreme Court opinions will have too many footnotes.
- California judges tried citations in footnotes, and now they often have over 100 footnotes for a 20-page opinion.
- All-citations-in-footnotes style “creates problems for adherents wishing to cite precedents not written in that style.”
- It creates problems for “non-adherents wishing to quote opinions written in the text and footnote format.”
In support of its position, the guide notes six of the seven California justices who adopted the all-citations-in-footnotes style several years ago “have now abandoned it because of the ‘bobblehead doll’ syndrome and quotability problems noted above.”
This might be the time to let the all-citations-in-footnotes argument go. If Bryan Garner can’t convince the Supreme Court, I doubt anyone else will.
(Thin) Space Oddity
You are officially at a graduate level of punctuation geekiness if you know what a thin space is. Even the Solicitor General’s guide doesn’t tackle them. But the Supreme Court does:
Section numbers, as printed in this manual and in the U. S. Reports, contain a “thin” space between the section symbol (§) and number.
How do you insert a thin space? If you’re on the Supreme Court, you use a macro that inserts these automatically.3
It’s not as though the Supreme Court invented this type of spacing. Matthew Butterick recommends using nonbreaking spaces in Typography for Lawyers. A nonbreaking space is the same width as a word space, but it performs a different function. It prevents text from flowing to a new line or page in this way:
And now I’ve reached the limit of my geekiness. I don’t know why the Supreme Court has chosen thin spaces over nonbreaking spaces. We’ll have to wait for Metlzer to break that story too.
Monospaced Font—The Courier Abides
Like the Solicitor General’s guide, the Supreme Court guide makes using proportionally spaced fonts optional. The 7th Circuit’s guide highly recommends proportionate spacing. Both have the good sense to use the font Century for court opinions. But Typography for Lawyers alone lays down the law:
There are no good reasons to use monospaced fonts. So don’t.
—Matthew Butterick, Typography for Lawyers
And Typography for Lawyers also reminds us that not all centuries are created equal, and ranks the permutations of the Century font. Here is what they look like:
- Century Schoolbook is “generally tolerable.”
- Century is OK in “limited doses.”
- Century Gothic is “questionable.”
Having trouble understanding why the Supreme Court uses supra the way it does? You’re in good company. Metzler doesn’t get it either:
“Supra” permits the author to omit any reference to the volume in which a case cited appears, so long as a full reference has appeared on the same page or the two proceeding. . . . Since one needs both the volume number and a page number to look a case up, in practice this means that the reader must scan back through the text to find an earlier reference, which often is not even the next-most-recent.
I’ll leave it to better minds to explain this rule.
Oxford for the Win
The Oxford comma is popular these days. Millennials, legal writers, and even George Takei have embraced it. The Oxford comma itself lurks on Twitter, looking for an opportunity to smash serial comma foes. So it’s no surprise that my (admittedly small) Twitter poll turned out like this:
— Brendan M. Kenny (@KennyBrendan) December 2, 2015
It seems like the only person who hasn’t publicly declared in favor of the Oxford comma is Siri:
The Supreme Court guide and all the style guides in the table above internally use the Oxford comma. It might be time to declare victory on this front of the legal-writing war.
Case Law Again Bests Caselaw
For years, Bryan Garner has favored the use of caselaw over case law to describe precedent established by judicial decisions. A few months ago, we learned that the Solicitor General’s Office favors case law. Now we know that Supreme Court takes the same view.
It looks like case law is about as established and ubiquitous as the singular-they usage.
The Here and the Hereinafter
The Solicitor General’s Office broke with the Bluebook by advising its advocates not to use hereinafter to introduce a short form for an authority. The Supreme Court’s guide sides with the Bluebook, as this example illustrates:
At least the Supreme Court doesn’t put quotation marks after the hereinafter. Little victories.
Rotten Links and References
We’ve all experienced this. Webpages are disappearing due to link rot and the information originally cited in them disappearing as well (known as reference rot). Both kinds of rot threaten to undermine Supreme Court opinions, with 50% of the URLs within Supreme Court opinions affected by reference rot.
The guide emphasizes that “the Court’s opinions will be relied on as authority for decades, even centuries.” To ensure the authority supporting the Court’s opinions remain available, the guide advises doing what the Court always has: Use and cite the official print version of a document where this is available. And the guide takes a hard line against citing online-only materials:
The Reporter of Decisions strongly discourages citation of otherwise-unpublished online materials—whether designated “official” or not—because of their corruptibility by hackers, natural disaster, technological obsolescence, and similar factors and because of their transient nature.
The guide relates that the online materials cited in one Supreme Court bench opinion were already “deleted before the opinion was published in the U. S. Reports.”
The Supreme Court has sought to solve this problem by following the Judicial Conference of the United States recommendation that courts capture and save cited online material. And you can now find all online materials cited in the Court’s opinions since the October 2005 term on the Supreme Court’s homepage. There is one problem. Many of these materials are non-searchable PDFs, like this webpage print-out from the 2010 Nevada Comm’n on Ethics v. Carrigan case:
Maybe someone can tell the Court about Perma.cc.
Bonuses for Legal Writing Nerds
The Supreme Court guide might just solve some problems you never knew you had. Here are just a few:
- Generally join two or more words that act as modifiers (e.g., cease-and-desist order), but not when the first word in a two-word modifier is a comparative or superlative (e.g., higher level decision).
- You can find a list of words that the Supreme Court thinks should (e.g., arm’s-length) and shouldn’t (e.g., case in chief) be hyphenated.
- Put a space between the “n.” and the number when citing a footnote.
- It’s attorney’s fees, not attorneys’ fees, “even though in the particular case more than one attorney may be involved.”
The Supreme Court’s super-secret guide is a secret no longer. Now if we could only get the chamber’s discussions live-streamed.