The Making of the Supreme Court Rules

Abstract

The reality that rules define institutions is no less applicable to the Supreme Court. Yet the literature on the Supreme Court Rules, and the rulemaking process behind them, is practically nonexistent. Part of the reason is that the rulemaking process for the Supreme Court Rules is a black box—the Court promulgates its rules with neither oversight nor transparency. This article, relying on interviews with current and former government officials, opens that black box to reveal the history of the rulemaking process for the Supreme Court Rules from the 1980s to the present. That process, as contrasted with the open and participatory rulemaking process for the lower-court rules, is highly secretive and insular. The article analyzes the justifications of such an approach and finds none persuasive. The article then turns to modest proposals for reform that will benefit the rulemaking process at marginal cost.

Keywords: court reform, rulemaking, supreme court, supreme court rules, court rules