Supreme Court Clerk’s Office as Pronoun Police?—Part 3

by Ed Whelan

As I noted in my Part 2 post, I inquired of the Supreme Court’s public-information office “how the clerk’s office understands Supreme Court Rule 34.1(c).” Here’s the response I’ve received:

The Clerk’s Office’s guides to filing paid and ifp cases address the content of a caption in connection with the submission of a cert petition.  Those documents are available here.* Once a case is docketed, parties generally should use the case title as reflected on the Court’s docket, unless there has been a change in parties (for example, a new cabinet secretary) that has not yet been reflected on the docket.

I followed up with this question:

Just so I’m clear: I gather from your answer that there’s nothing public that actually says this: “Once a case is docketed, parties generally should use the case title as reflected on the Court’s docket.”

Would you please confirm whether I have that right?

I received this response: “For your guidance, that’s right.”

As always, I’m grateful to the Court’s public-information officers.

Some comments:

1. It’s now clear that the clerk’s office has admonished two counsel for amici for supposedly violating a rule that doesn’t say what the clerk’s office thinks the rule means. Further, the clerk’s office has not made public its de facto modification of the rule. And, as I noted in point 3 of my Part 2 post, it has also not consistently enforced that understanding.

2. The manner in which the clerk’s office handled this also strikes me as highly dubious. It seems to have rushed to respond to an inquiry from a Slate author and transgender activist. Further, rather than sending its letters by regular mail, it sent them to counsel for amici by email, thus giving it the excuse to send copies pronto to the author-activist. Its course of conduct seems to have been designed to generate the sort of slams of amici counsel that in fact happened.

3. The clerk’s office owes counsel for amici a written apology and a retraction of its admonishment. But somehow I’m not betting that will happen.

* I’ve converted the URL in the response to a hyperlink, as it was displaying very strangely.

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