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Only lawyers may argue before SCOTUS

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Michal Benari
Summer Intern, Manhattan Institute's Center for Legal Policy

It is commonly presumed that one must be a lawyer in order to present an argument before the U.S. Supreme Court; yet until this week, this was a mere convention. On Monday, the Supreme Court revised its 80-page rule book, and established this principle as a legal requirement. This is the first revision since 2010, which dealt with the practice of amicus curiae briefs under Rule 37.3(a). The constraint was inscribed in Rule 28.8, which the Court described as simply codifying a "long-standing practice."

It has been more than three decades since a non-lawyer argued before the Justices, the last of which was Samuel H. Sloan, who represented himself in 1978. Sloan declared that his independence was not "an ego thing," but rather he felt he had the means to succeed, which was later affirmed by his 9-0 victory.

This rule aims to protect and enhance the best interests of the litigant, as Stephen M. Shapiro, a veteran of 30 arguments before the Court and co-author of Supreme Court Practice, emphasizes that experience, qualifications and knowledge are required to successfully present a case and that without such benefits it "would be a very difficult chore." Richard Lazarus, a Harvard Law professor, expressed his disapproval of the notion to appear before the Court independent of counsel to be "a stupid, crazy idea."

Sloan conversely argues that "the Supreme Court should remain, in principle, open to everybody," thereby echoing the sentiments of many who oppose this law and view it as an infringement of civil liberties. The new rule, opponents argue, could seemingly create disparities, and render those less financially secure with no alternative but to acquire council, even if they could have successfully argued autonomously.

In practice however, this rule has invoked limited change.

1 Comment

The trouble is that under federal law (28 U.S.C., Section 1657), a non-lawyer has the right to do anything in his or her own federal case that an attorney can do for a client. That includes personally arguing before the Supreme Court. I only expect the Supreme Court to follow the law when it suits it purposes.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.