Supreme Court Clerk’s Office as Pronoun Police?—Part 2

by Ed Whelan

With Part 1 as background, let’s now examine whether the Supreme Court’s Office of the Clerk was correct to admonish two amici in the pending case of Gloucester County School Board v. G.G. for using a caption that identified the respondent as “G.G., by her next friend and mother, Deirdre Grimm” (emphasis added).

Here’s the body of the letter from the clerk’s office:

It has come to the attention of this office that the cover of your amicus brief in this case identifies the respondent as “G.G., by her next friend and mother, Deirdre Grimm.” In fact, the caption for the case in this Court, as in the lower courts, identifies the respondent as “G.G., by his Next Friend and Mother, Deirdre Grimm.” (Emphasis added.) Under Rule 34, your cover is to reflect the caption of the case. Please ensure careful compliance with this requirement in this and other cases in the future.

Some observations and criticisms:

1. The heart of the clerk’s letter is this statement: “Under Rule 34, your cover is to reflect the caption of the case.”

But Rule 34.1(c) of the Court’s Rules actually says only that “Every document shall bear on its cover … the caption of the case as appropriate in this Court.” (Emphasis added.)

What does “the caption of the case as appropriate in this Court” mean? What renders a caption “appropriate” or inappropriate? What written guidance does the clerk’s office provide, and what practice does it follow? (I have made this inquiry of the Court’s public information office.)

2. The clerk’s office evidently understands Supreme Court Rule 34.1(c) to mean that there is some sort of official caption for every case in the Court. How would such an official caption be established? By whatever caption the petitioner uses in its certiorari petition?

Are we really supposed to imagine that if Gloucester County had used a caption in its petition that identified the respondent as “G.G., by her next friend and mother, Deirdre Grimm,” G.G. would have been obligated to use that caption on her brief—and that the clerk’s office would have admonished G.G. for failure to do so?

(The clerk’s letter seems to think it significant that the “lower courts” used “by his next friend” in their captions. But the highly respected Supreme Court Practice (10th edition)—informally known as Stern & Gressman—states that counsel submitting the certiorari petition “is not bound by the caption used in the court below” and “is free to clarify or improve it so as to portray accurately the adversary position of the contending parties.”)

3. But perhaps it’s enough that the Court’s docket page sets forth a caption for the case that includes “By His Next Friend”? Perhaps, in the absence of a petition for a change, all parties and amici are obligated to use that caption? If so, why doesn’t Rule 34.1(c) say so?

Further, if that is the position of the clerk’s office, I’ll note that it doesn’t consistently enforce that position. In the one other case I’ve checked, Burwell v. Hobby Lobby, the certiorari petition identified the lead petitioner as “Kathleen Sebelius, Secretary of Health and Human Services,” and that is how the Court identified the lead petitioner through the oral argument in the case (and until Sylvia Matthews replaced Sebelius). But many of the countless amici (a few examples here, here, and here) dropped the “Secretary of Health and Human Services” from the caption. Indeed, the Ethics and Public Policy Center (the think tank I head) did so as well, and I can personally attest that we did not receive a letter of admonishment from the clerk’s office.

4. So why the selective enforcement against amici in the Gloucester County case?

The real-world, but not legally sufficient, answer is that Slate’s Mark Joseph Stern inquired* of the clerk’s office about the amici’s captions. But why did the clerk’s office find as it did? 

It’s telling that Stern himself, in his celebration of the clerk’s letters, can’t provide a good answer. He claims that the Court “has very specific rules governing these briefs,” but he quotes only the vague language of Rule 34.

5. Stern, I’ll note, claims that G.G. (aka Gavin Grimm) “has legally and medically transitioned from female to male.” Let’s take a quick look at these claims.

According to her merits brief, Grimm received an ID card from the state DMV in 2015 that identifies her as male. Further, she has recently had the designation of sex on her Virginia birth certificate changed from “female” to “male.”

It’s a matter of state law whether these legal changes are binding on the Gloucester County School Board. And if they are, wouldn’t the case now be moot, with the decision below to be vacated?

As for Stern’s claim that Grimm has “medically transitioned from female to male”: Set aside how that is even biologically possible. (Are we supposed to believe that her chromosomes have been altered?) All that apparently underlies the claim is that Grimm, in addition to “hormone therapy,” had “chest reconstruction surgery” nearly a year ago. I’d rather not get into the details, so let’s just say that the usual defining signs of a female’s sex remain unchanged.

* I initially stated that Stern “complained,” but Stern has informed me that he made a simple inquiry, so I have made this change and a corresponding change in the subsequent sentence.

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