Pro Se Litigants, SCOTUS, Supreme Court

R.I.P. Pro Se Litigants Before the Supreme Court

Or at least R.I.P. for non-lawyer pro se litigants. Just when you thought the Supreme Court season had finally come to a close, the Court released a new rule book this morning. It’s 80 pages long and mostly a rehash, but the addition of Rule 28.8 garnered some attention for finally closing a door on the practice of non-lawyers arguing before the Court.

Not that it happened very often.

It’s unknown why the Court decided to take this step now, but if you’ve ever had to deal with a pro se litigant, you have to think one motivating factor is saving Justice Alito’s eyes from rolling completely back into his head.

So now let’s reminisce about the triumphs and defeats of past pro se litigants before the Court…

Today’s move by the Court merely codified its standard practice of denying requests by non-lawyers to argue their cases. In fact, the last time a non-lawyer managed to get in front of the Court was in 1978:

New York resident Samuel H. Sloan, now 68, was the last nonlawyer to do it when he represented himself in 1978 in a lawsuit involving stock trading. Sloan says he interviewed several lawyers who volunteered to represent him for free, just for the prestige of appearing before the court, but he decided to handle the job himself.

“It wasn’t on an ego thing or anything like that,” he said recently. “I wanted to win the case. I was convinced I couldn’t win the case in any other way but to argue my own case.”

He won 9-0.

Reviewing the opinion, it looks like Harvey Pitt argued this case for the SEC. Losing 9-0 to a pro se litigant can sting, but at least he can take heart that no one will remember him for this screw up after Enron collapsed 22 years later.

In 1948, a Chicago man named Harrison Parker appeared before the court to argue that he was improperly convicted of contempt of court on two different occasions.

One newspaper report from the time suggests Parker did fine, though it was clear he was an amateur. He arrived with a thick pile of notes, wagged his fingers at the justices, and wore striped pants and a cutaway jacket. That was what all lawyers once wore to argue at the court, but it had fallen out of favor for all but government lawyers by the time Parker appeared before the court.

Still, a Washington Post reporter covering the case wrote that Parker proved “you don’t have to have a lawyer in the Supreme Court.”

Parker did not fare as well as Sloan, but did pick up three justices in dissent.

But this passage reminds us of the continuing tradition of morning dress for the Solicitor General’s office before the Supreme Court. If it already looked stupid in 1948, it definitely looks stupid now. Adhering to tradition for the mere sake of tradition is small-minded. After Elena Kagan dumped the practice — since wearing what is essentially a tuxedo is less than flattering for a woman — there was some reason to believe it would join powdered wigs in the dustbin of American legal history. No such luck.

Since Sloan, the Court has generally appointed counsel for non-lawyers with cases being heard. This probably helped the process, but it robbed America of quality entertainment:

Hustler magazine publisher Larry Flynt fired his lawyer in a libel case before the court and asked to handle arguments himself. Flynt was also told “no,” and the court assigned [Stephen M.] Shapiro to argue his position. Flynt came to the argument, but was escorted out when he started yelling obscenities.

While First Amendment fans are glad cooler heads prevailed, the transcript of a Larry Flynt oral argument would have spiced up law school reading lists a bit.

But ne’er again shall we see the like of Samuel Sloan taking a personal plea before the high court. Sad.

On the other hand, your law degree just became marginally more valuable, so there’s that.

Rules of the Supreme Court of the United States [Supreme Court]
Supreme Court: You Must Be A Lawyer To Argue Case [Associated Press via Huffington Post]
Securities and Exchange Commission v. Sloan [Legal Information Institute]
Parker v. Illinois [FindLaw]

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