Reprinted with permission from the S.C. Bar’s S.C. Lawyer

Jack Metzler is a whole lot braver than I am. Mr. Metzler, a lawyer from the Federal Trade Commission, obtained and copied the 2013 United States Supreme Court’s private style manual (“Manual”) from the Court’s library. See Debra Cassens Weiss, Lawyer sells secret SCOTUS style manual for $29.95, ABA Journal, (Apr. 1, 2016, 5:45 AM CDT), www.abajournal.com/news/ article/lawyer_sells_secret_scotus_ style_manual_for_29.95. 

yle_manual_for_29.95. He did nothing illegal, but—as much as I am grateful personally to him for sharing the Court’s rules of writing—if I practiced as much before the Supreme Court as Mr. Metzler does, I would not have published anything that the Court called “private.” I was happy, however, to buy that book (The Supreme Court’s Style Guide) as soon as I learned it was available because I was curious to learn if the Court follows The Bluebook, if the Justices are fussy about things like hyphens, and if they think we should always capitalize the word “federal” like our governmental lawyers do. To answer these (and other) burning questions, I gladly paid the $29.95. 

Does the U.S. Supreme Court follow The Bluebook’s citation rules? 

No, the Supreme Court is bigger than The Bluebook. Although I am sure that every single Justice, law clerk, and staff attorney was raised on The Bluebook rules of citation, the Court does not need to put up with any rules they do not like. Although the Manual states that The Bluebook is “a useful reference,” it is clear that when The Bluebook conflicts, the Manual wins.

In fact, much of the Manual is devoted to setting out the Court’s own rules of citations. Most of the deviations are minor (such as different spacing and abbreviation) except to a Bluebook devotee. NOTE: I am a Bluebook devotee. 

Some examples are listed in the table below.

Does the Supreme Court prefer that case names be underlined or italicized?

The Court wants the parties’ names to be italicized, but the “v.” between the names should be in regular Roman type, not italicized. That is just plain strange, but they call the shots. 

EXAMPLE: Moose & Squirrel LLC v. Natasha, 444 F. Supp. 2d 16 (D.S.C. 2017).

Note, however, The Bluebook allows either italics or underlining, but choose one or the other, and the “v.” follows suit. 

EXAMPLE: Moose & Squirrel LLC v. Natasha, 444 F. Supp. 2d 16 (D.S.C. 2017). 

OR

Moose & Squirrel Co. v. Natasha.

The Manual also states that words should be italicized, not underlined, for emphasis. 

Does the Supreme Court allow case citations in footnotes?

Many noted legal writers (such as the original Scrivener, Professor Tom Haggard, and legal writing scholar Bryan A. Garner) advocate putting all case citations in footnotes instead of the text. I have written about this in prior columns, so I will not repeat all that here, but the argument for footnotes is that the citations junk up the text with the cites, and if readers really want to read the citations, they can look at the footnotes. The argument against that practice is ALL CITATIONS ARE IMPORTANT. Is this another case from Guam in the 1950s? To find out, you will need to look at every single footnote as you are reading the text. 

The Supreme Court agrees. The Manual actually got a little snarky about it: “Certain legal writing ‘experts’ suggest that all citations be placed in footnotes in order to make judicial opinions more readable to the public . . . [S]uch advice is misguided.” Stating that although the public is never going to be inclined to read judicial opinions, no matter what, judges and lawyers are vitally interested in the legal authority for a court’s statements. After a full discussion of the issue, the Manual noted that six of seven Justices in the California Court of Appeal had adopted, then abandoned, the all-citations-in-footnotes style because of the “bobblehead doll syndrome” and quotability problems. 

Does the Supreme Court have favorite reference books?

The Court has favorites. Webster’s Third New International Dictionary is the favorite authority for spelling and compounding words in general, but the Manual instructs its clerks to follow Black’s or Ballentine’s legal dictionaries for legal terms. Other recommended dictionaries are American Heritage Dictionary and Oxford English Dictionary. Additionally, for usage (style), the Manual recommends the following:

  • The Careful Writer (Theodore M. Bernstein)
  • Dictionary of Modern Legal Usage (Bryan A. Garner)
  • Modern American Usage (Bryan A. Garner)
  • American Heritage Dictionary
  • Modern English Usage (Henry Watson Fowler)
  • The New Fowler’s Modern English Usage (R.W. Burchfield)
  • A Dictionary of American-English (based on Fowler’s Modern English Usage)
  • Elements of Style (William Strunk, Jr. and E.B. White)
  • Dos, Don’ts, & Maybes of English Usage (Theodore M. Bernstein)
  • Modern American Usage (Wilson Follett)
  • Merriam Webster’s Dictionary of American Usage.

Note that this rule does not address the use of dictionaries for anything but spelling and stylistic uses. In addressing statutory construction cases, the Supreme Court has looked to the dictionary to provide the “ordinary meaning” of words when a term goes undefined in a statute. See Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560 (2012) (surveying the meaning of the word “interpreter” found in the editions of six dictionaries that were being used when the Court Interpreters Act of 1978 was enacted: American Heritage Dictionary, Scribner–Bantam English Dictionary, Random House Dictionary, Oxford English Dictionary, Concise Oxford Dictionary of Current English, and Chambers Twentieth Century Dictionary).

Also, the South Carolina Court of Appeals warned against using dictionary meanings if a court has already provided “an accurate and reliable definition” for a particular term. See Heilker v. Zoning Bd. of Appeals for Beaufort, 346 S.C. 401, 409, 552 S.E.2d 42, 46 (Ct. App. 2001).

Does the Supreme Court have particular pet peeves?

Even Supreme Court law clerks—who are certifiably 100% brainiacs (before you ask: Merriam-Webster dictionary confirms that “brainiac” is a word)—often misuse certain words, and the Court would like them to stop. Some of them are as follows:

  • Parameter: This is “an obscure mathematical term. It does not mean ‘boundary’ or ‘perimeter,’ and its use should be avoided.” •
  • Hopefully: Described as “much overused and misused,” the Manual states that “hopefully” should not be used as a “dangling” adverb to mean “it is to be hoped that . . .” or “we hope that . . .” The Manual admits that some respected legal writers and authorities sanction its use, but stands firm on prohibiting the word in Supreme Court opinions.
  • Damage action: The correct term is “damages action,” with an “s.”
  • Attorney’s fees: Use the singular possessive case (and not “attorneys’”) even when the fees are for services of more than one attorney.
  • Ensure, insure, assure: “Ensure” indicates the process of making certain that things occur or events take place. “Insure” should only refer to what insurance companies do. “Assure” is used to mean making a promise to or convincing other people. 

I know the Scrivener has spenta lot of time on things like pinpoint citations, hyphens, and dashes. Does the Supreme Court care about those kinds of details?

Oh yes, the Court cares. This means a lot to me after catching unmitigated heck from a lot of readers for a column about hyphens and the precise and exquisite differences between en dashes and em dashes. The only people who seemed to like hyphens and dashes were my friend Evan, my cat, and me. Please add the Supreme Court to my list. 

The issue of dashes arose in the Manual in a discussion of “jump cites,” which are more commonly known as “pinpoint cites” (a numerical reference to a specific page following a cite to the initial page of a case). For example, in Nichols v. Burnette, 566 F.3d 5, 7 (4th Cir. 2015), the “7” shows the exact page that is being cited for a quotation or legal proposition. 

The Supreme Court has rules for pinpoint citations beyond what the Bluebook provides. For example, in a full citation, do not use a pinpoint cite for referenced information that is located in the first page of an opinion. 

Example: Nichols v. Burnette, 566 F.3d 5 (4th Cir. 2015). NOT: Nichols v. Burnette, 566 F.3d 5, 5 (4th Cir. 2015).

Also, when the referenced material spans more than one page, the Manual is explicit that writers should state the range of pages by separating them by an en dash, not a hyphen.

Example: Nichols, 566 F.3d at 8–9. NOT: Nichols, 566 F.3d at 8-9.

 

Does the Manual really devote almost seven pages to capitalization?

Yes, it does, but before you start thinking that seven pages is overkill since you have known since the third grade how to capitalize, some of these rules are helpful, especially for federal practice.

  • Federal: “Federal” is not ordinarily capitalized (federal program, “federal jurisdiction”), but capitalize it when the word it modifies is capitalized (Federal Constitution, South Carolina Federal District Court).
  • Government: Capitalize when referring to the “Federal Government” or “National Government” or as an adjective referring to the Federal Government (such as Government agency or Government contract). Capitalize “Government” when referring to foreign governments, too. Government is also capitalized when referring to the Federal Government or United States as a party to a judicial proceeding. Do not capitalize the word for state governments or governments in general.
  • Court: Capitalize only when referring to a specific court (South Carolina Supreme Court, Fourth Circuit Court of Appeals). This applies even when referring to a specific court that is not named in full. (“The United States Courts of Appeal are split on this issue. However, some Courts of Appeal have held that it is negligence per se to run with scissors.”).
  • Justice, Member, Brother, Brethren, or Sister of the US Supreme Court: Capitalize these words when referring to U.S. Supreme Court Justices.

I can’t guarantee that you will get at least five of the nine Justices to see things your way if you ever have to file a brief and engage in oral argument before the Supreme Court. What I can say for certain, though, is that each and every piece of writing you submit to the Court will be scrutinized by the Justices and their law clerks not only for legal persuasiveness, but also for style and citation. So, be sure to double- and triple-check your written work product to avoid being chided by, say, Justice Alito or Ginsburg for a sloppy brief. That is the kind of thing that keeps the Scrivener up at night! ⚖