Most of us—even those of us who studiously avoid reading newspapers, who have no lawyers in the family, who don't care about politics, and who have only seen the inside of a courtroom as represented on the television program Law & Order—are generally aware that somewhere in Washington, D.C. there exists a Supreme Court. It is, of course, the highest court in the United States, and most of us might even know that there are nine justices appointed for life who rule on the cases it hears. Maybe we've heard of a famous Supreme Court case here or there, such as Roe v. Wade. Yet for most of us, that's pretty much all we know.
As is often the case with our political system, despite generally knowing about it, most of us don't actually interact much directly with it. We certainly don't interact with the Supreme Court—even most lawyers never do. Unlike district and appellate courts, which are required to at least hear every case that might appear at their respective doorsteps, the Supreme Court gets to choose which cases it wants to hear. To get to the point where the Supreme Court might even consider your case, you have to lose at the appellate level (which might mean you lost twice, once at the district level, and again at the appellate level), or be the unfortunate party who won on appeal, but is then subject to the other side's petition. The chance of emerging from the Court a winner, which means both that your case has to be selected, and then won, is exceedingly slim.
Recently, having been granted the dubious honor of losing twice in my lawsuit against Ben Mezrich, first in the District of Massachusetts when my case was dismissed by Magistrate Judge Robert Collings for "failure to state a claim," and again in the Court of Appeals for the First Circuit, which upheld Judge Collings's orders without so much as the blink of an eye, I found myself in the position where I could, conceivably, take my case all the way to the Supreme Court.
Even knowing full well the adage, "A man who represents himself has a fool for a client," I had been fighting the lawsuit pro se (meaning without a lawyer) since the beginning. Even though this saying has more than a grain of truth to it—several papers in respected law journals have actually shown that the courts are biased quite heavily, in numerous ways, against pro se litigants—there is also the simultaneous reality that one must also be a fool to pay lawyers' standard hourly rates, which tend to hover in the $300 to $500 range despite there being no good economic rationale for them to be so high. (And in fact, the legal industry is imploding before our very eyes because of the resulting economic imbalance.) In this particular case, I was fighting mostly, but not entirely, out of principle, so it seemed that much more foolish to shell out tens of thousands of dollars in legal fees for something I could teach myself to do.
Looking into the possibility of representing myself before the Supreme Court, however, I started to get the sense that it would be a slightly greater challenge then the already substantial challenge of reverse engineering the legal system and all its pitfalls, which I had started to work on with PlainSite. From the date that the First Circuit denied my petition for re-hearing—a practically useless formality that basically amounts to the petitioner arguing "You're wrong," and the judges responding, "No, you're wrong"—I had ninety calendar days to file.
Throughout the first sixty days or so I would occasionally have bursts of energy where I thought I might be able to handle the various tasks of reading and researching and writing and editing and assembling, at which point I would do more research about the Court itself and learn even more daunting facts about the process. But finally, with two weeks left and the deadline closing in, I made up my mind: it was an opportunity that most people never had, and it would be a shame to waste it. Besides, since I was representing myself, I had only the filing fee and printing costs to worry about.
The filing fee (or "docketing fee," as the Court calls it) of $300 is not particularly high. Filing in the Court of Appeals for the First Circuit actually costs more, at $450, strangely enough. Like most appellate courts, the First Circuit did have some rules about typesetting, printing and binding that were different than the district courts'—it demanded Times 14 instead of Times 12—but for $60 I was able to spiral-bind twenty or so copies of my brief and put them in the mail to Boston. For the Supreme Court, I expected a similar level of antiquated regulation and annoying inconvenience.
Was I ever wrong.
Simply put, the Supreme Court uses its desktop publishing and printing guidelines as a weapon against the American public. The mechanics of this weapon are detailed in an obscure rule that virtually no one has ever heard of, Supreme Court Rule 33.1. Rule 33.1 is quite long, and among attorneys who are members of the Supreme Court Bar, feared. It can make or break a case, and it has.
Before I got too deep into the minutiae of the rule, I decided to check into the option that every single lawyer I spoke with advised me to take, namely, outsourcing the project to a professional Supreme Court brief printing company, and so I called the most well-known Supreme Court brief printing company there is to ask for a quote. (Yes, there really are such companies.) They asked how long the First Circuit and district court opinions were and based on the page length I provided them, quoted me a range of $1,800 to $1,900 to print my brief if I supplied them with all of the text ready to go. If I just handed them a stack of paper, it would be more.
To be clear—that $1,800 to $1,900 figure represented printing costs alone, not legal fees; I did not have a lawyer in this case. Filing with the Supreme Court is only $300, so something seemed wrong about the printing fees running potentially more than six times as much as the official fees. Yet checking with other sources confirmed that the quoted price range was not out of the ordinary.
That's because what the Supreme Court wants from petitioners, and more than wants, requires of them, is something akin to a seventeen-leaf clover. Or a fire-breathing dragon with a single beefy arm, that's also half giraffe. Its major components certainly do not exist in nature—nor in any common retail store in the country, for that matter. It seems hard to believe, but if you are not in prison and you are not completely unable to pay the $300 docketing fee, you have no choice but to either shell out that $1,800 to $1,900 (though prices do vary), or undertake an epic quest to create this strange sacrificial offering so that the justices might notice the suffering you have come to the courts to resolve.
So, of course, not wanting to waste money and curious as to how hard it could really be, I elected to do the latter.
My goal: forty (40) booklets of the most peculiar sort, plus three (3) booklets each per separately represented party in the case (there being four parties not including myself, with seven lawyers between them, at four law firms, in three cities), plus at least one (1) booklet for myself. Since Ben Mezrich's shell corporation, Mezco, Inc., shares his own lawyer, and his legal fees are likely being paid by his publisher Random House, Inc. who likely picked his lawyer in the first place, it cut down the number of "separately represented" parties to two. Two times three is six, plus one, plus forty, comes to forty-seven (47) booklets.
Each booklet, called a Petition for a Writ of Certiorari (but just as plausibly called Wishes for Space Signals from Judges on Alpha Centauri), must contain a precisely formatted essay with specific sections addressing specific questions that the petitioner desires the Court to address. That is, all things considered, the easy part—though it is by no means easy. Highly sought-after lawyers charge tens of thousands of dollars, if not more, to clients who need to formulate these documents. The hard part is the booklet itself.
The first thing to know is that the finished booklet must be 6 and 1/8th inches wide and 9 and 1/4 inches high.
9 and 1/4 inches is a strange number when it comes to page length. Most of us know paper (so long as we're not in Europe or Asia) as being 8 and 1/2 inches wide by 11 inches high, commonly referred to as "Letter" size paper. If you take a standard sheet of Letter paper and fold it over, you get a booklet that is 5 and 1/2 inches by 8 and 1/2 inches. For the Supreme Court's purposes, that for whatever reason doesn't work. (Interestingly, the dimensions of the printed text block easily fit on a Letter sheet of paper, so Rule 33.1 could be said to be designed to mandate slightly bigger margins, and nothing more.)
Well—you might think (as I did)—maybe they sell 12 and 1/4 inch by 9 and 1/4 inch paper in stores (so that when you fold it over lengthwise you get a booklet that matches the Court's required dimensions).
They most certainly do not sell 12 and 1/4 inch by 9 and 1/4 inch paper in stores. It's one of the only things, in fact, that I've ever typed into Google and not found a single relevant result for. However we farm trees to make paper, we do not farm them to make paper of this size. It does not exist in the marketplace.
That's puzzle number one. Puzzle number two is that the magical breed of paper must be yea thick. How thick? "Not less than 60 pounds in weight," and "unglazed," states Rule 33.1. Upon first glance, I had no idea what this meant. I weigh about 140 pounds—so what would that mean about my paper?
According to the boring Letter-size OfficeMax copy paper in my filing cabinet drawer, normal paper appeared to be 20 pounds in weight. This was confusing, because it seemed that the Supreme Court was asking for paper three times as thick as normal copy paper for the inside of its special booklet. This also made very little sense—until Google actually did turn up something relevant.
In the world of fancy paper, there is apparently more than one way to skin a cat. You can describe paper weight and thickness according to a global standard called GSM (Grams per Square Meter), or you can use archaic terms with no agreed-upon meaning, such as "pounds," and hope that said terms are accompanied by even more capitalized terms that explain context, such as "text," "cover," or "bond." For example, 60 lb. TEXT paper is the same thing as to 24 lb. BOND paper. And 65 lb. COVER paper is much more than 8.33% thicker than 60 lb. TEXT paper, which is not three times thicker than 20 lb. OfficeMax paper in your filing cabinet. In short, it's math from another planet (and thereby lending more credence to the hypothesis that actual justice might be more swiftly arrived at by hoping for signals from Alpha Centauri).
So it's a good thing that Rule 33.1 doesn't specify any of this. All the Supreme Court can tell you is that it wants "60 pound" paper on the inside and "65 pound" paper for the cover. All calling the clerk of the Supreme Court will tell you is the added information that the Court wants cardstock on the outside but probably not on the inside—and that they're not really sure about the precise thickness. So that suggests 60 lb. TEXT paper or heavier—but not cardstock heavy—for the inside and 65 lb. COVER paper or heavier for the cover. All in a page size that doesn't exist.
Then there is puzzle number three, which is the fact that even if you could find this amazingly rare and magical breed of paper, you'd still have the problem of really making it all into a booklet, which requires binding. Rule 33.1 notes that the Supreme Court considers "saddle stitch or perfect binding preferred." So, as the petitioner who is completely at the mercy of the Court, you could do something the court "prefer[s]," or some other thing. Suffice it to say that the other thing is out of the question, instead leaving one to wonder, "What does 'saddle stitch' mean? And what does 'perfect binding' mean?"
YouTube, fortunately, has all the answers. Saddle stitch means that you staple (or if you are Benjamin Franklin or someone his age, string, with needle and thread) the booklet together at two or three locations along the spine. Perfect binding involves the use of glue and lots of mini-booklets to make a big booklet, which is how many of our mainstream books are published with giant hulking machines that are made in China. Saddle stitching is clearly the cheaper and easier option, but it has a limit: if your booklet is too thick, the staples (or even your needle and thread) might not be able to get through, and so it won't work.
Even with all of this information, it was hard to know where to begin, let alone to resist the urge to throw something in the Supreme Court's general direction (for me, east). It was at least becoming clear to me why printing fifty or so booklets for the Supreme Court might cost as much as a lousy used car.
Making the decision to saddle stitch the booklets, come hell or high water, at least cemented some of the many variables in place. Since the Court also requires all booklets to be printed on both sides (like any real book), I would need to fold over the sheets of paper to reach the required size, as opposed to cutting one thousand double-sided 6 and 1/8 inch by 9 and 1/4 inch pages from Letter sized sheets of paper, which would be relatively easy. The next step up from Letter is Legal, which at 8 and 1/2 inches by 14 inches would still not be large enough to make the booklet signatures (the big pages on which two small pages would be printed on each side). One more step up, Tabloid (also called Ledger), measures 11 inches by 17 inches, and finally is.
Talking to a friendly person named Arren at Stanford Law School's copy room in the basement (who interestingly enough had never tried to print a Supreme Court brief before) taught me a valuable lesson: even if I managed to somehow get this all to work with Tabloid-size paper, the images of the small pages on each signature would either have to be consistently in the center of each big page, necessitating four cuts (instead of two if printed in the corner) to get the paper down to the desired size; or precisely alternated so that the images did not print in opposite corners on the front and back when running through the printer. A third option was to pre-cut the paper to 12 1/4 inches by 9 1/4 inches ahead of time, and then run that through—but the Law School's giant Xerox machines of course had no such Bizarro size paper tray and might not handle the custom size reliably. Also, the printing fees would come to something around $120 at least, and would probably not be ready by my deadline since the Law School copy room is not open on weekends.
This led me to another key decision: I would not be able to use the Law School's giant Xerox printers. I would have to buy my own.
Though the Supreme Court does mandate specific paper colors in Rule 33.1 for different kinds of briefs, it fortunately (and mercifully) only desires black ink. And although I already had two laser printers of my own quite capable of printing in black, and one of those even has a duplexer, neither could print on Tabloid-size paper. I would have to buy a Tabloid printer and a 17-inch-or-larger paper cutter to get the job done.
Looking for new equipment of this type on the Staples web site indicated that I should be prepared to spend many thousands of dollars, which would defeat the purpose of avoiding the printing company. So I turned to Craigslist. In short order I found what looked to be an industrial-strength guillotine paper cutter available in a nearby city for $40, and an HP LaserJet 5000N, capable of printing on Tabloid paper at a claimed speed of eight pages per minute. Even though the printer's owner upped the price from $145 to $170 at the last minute ("I'm giving you a model with toner!" he reasoned before I got him back down to $160), I bought them both and was glad to find that they both fit in my car (at least separately). So, for $200 and about $10 of gas, my equipment needs were met.
The paper cutter did its job fairly well, slicing through twenty to thirty sheets of paper at a time easily. The only problem was that the paper would inevitably curl ever so slightly due to the shearing action caused by the blade, in turn causing the cut to curve a little. Clamping down on the paper with the two vices attached to the machine resulted in less shear, but also caused the bottom pages to be marked with a diagonal ridge texture where the main clamp hit them.
While I was trying to get the hang of the paper cutter and upgrading the used printer's JetDirect firmware (skipping ten years of revisions), I was also writing the actual legal brief for the Court to read. Compared to other briefs in the case before lower courts it was fairly short, with a maximum length of 9,000 words. The main issue was that the Supreme Court required me to include all of the previous orders from the lower courts—typeset in the same font as the main document, on the same paper size, without making photocopies or reducing the original page images. This required some effort.
Anyone who has encountered the Supreme Court's many rules before, or even read a slip opinion, will recognize New Century Schoolbook as the Court's favorite font. Consequently, everything had to be set in New Century Schoolbook. Though I had a PDF of the district court order (originally typed in Microsoft Word), it was typeset in an ugly bitmapped Type 3 PostScript font, and the formatting (especially for citations and footnotes) of course did not transfer over by copying and pasting. I therefore spent several hours re-creating the exact same document I already had, just in a different font on a different page size. To make matters worse, all of the page numbers had to be re-assigned on a section by section basis (Roman numerals, then standard Arabic numerals) for the main brief and the "appendix," which contained all of the prior orders.
When all of the typesetting was done in Microsoft Word, I started highlighting the cited cases to automatically build the Table of Contents and Table of Authorities—a painful ritual that most litigators (or more likely, their paralegals) know well. It was only then that I realized that I would not be able to use Word to do the actual printing. I've been using Microsoft Word 97 for years without any desire to upgrade, and I was pretty sure that at least my version did not support booklet printing. (Even if it somehow did, the PostScript driver on Windows also has a bug that causes random letters to disappear on the page, and New Century Schoolbook is a PostScript font.)
So began the great Adobe InDesign transition. I imported the Word document onto my custom InDesign page size document without too much trouble, re-assigned all of the page numbers again, created all of the sections, and realized that the font spacing differed substantially enough between the two programs that all of the page numbers were off. InDesign does not natively support legal features such as building a Table of Authorities (but it is magically exempt from the disappearing letters PostScript bug), so I manually edited all of the citations to make sure they still corresponded to the correct pages. When I was all done, I finally could print in booklet format directly to my printer, or to a PDF.
Once printing began on the LaserJet 5000N, I quickly regretted not springing for a printer with a duplexer. When you need to print about 1,000 pages, 8 pages per minute seems unbearably slow. To avoid the mind-numbing boredom associated with the task, I cut about 50 pages down to their proper size at a time, and then stood in front of the printer to run them through the manual paper tray, and then cut some more. After a full afternoon of printing, this yielded a stack of 1,000 oddly-large pages with two columns of text, single-sided. The next day, I repeated the process on the other side.
At this point I realized I'd made a mistake. I knew that page order mattered, so I had reversed the output when printing side one of each page. This meant that the stacks of paper could be put through the printer again in normal order when I printed on their backs. Unfortunately, when complete, this meant that my booklets started at the end, not the beginning. So I had to manually reverse the page order for all of them. I should have reversed the order only when printing the backs.
I also came to hate my printer—despite producing beautifully clear and crisp output—because of its tendency to grab two or three pages at a time. (In contrast, my much newer HP LaserJet P2050dn printer with the duplexer has a problem where it won't grab any pages at all. Life is full of cruel ironies.) Whenever a dual or triple page grab occurred, which was frequently, the sequence of pages printed on the back side would be off, I'd have to cancel the print job, and then backtrack to figure out where things had started to go wrong. Occasionally, I realized that when printing the front side, the printer had grabbed two pages at a time. Even though I knew about this early on and manually went through each booklet's stack to weed out the blank pages, I missed a few, and it still caused the sequence to go out of order. A duplexer would have therefore made my operation much more than twice as fast.
Finally, I had forty-nine stacks of twenty double-sized sheets of custom-size, custom-thickness paper. I was ready to print the Supreme Court's special covers from a separate PDF file. I opened the package of white 65 lb. COVER paper that I had special ordered, and realized two things: first, that it was textured, which I hadn't expected, and second, that it wasn't the same color white. It might be cream. Then again, maybe it was white. Or cream. But in a certain light, definitely white. Kind of creamy-white. Unfortunately, the Supreme Court color chart specified that CREAM covers were reserved for amicus briefs. I decided to plow ahead anyway, since it had taken a week and $42.77 for this paper to get to my doorstep, and I didn't have another week to wait. (By comparison, the paper for the inside of the booklets had been easy to find. I ordered four reams, or 2,000 pages, from Costco for $52.10, and only used half.)
Despite the higher thickness, the test cover went through the printer just fine, much to my relief. Then I noticed the ink looked a little smudged. Running my finger over it made it very smudged. Just brushing another sheet over it smudged it even more. Apparently, laser printer toner would not stick to this special kind of special paper. The fuser couldn't heat it enough in the valleys of the paper texture, even when I changed the printer settings to account for cardstock.
I knew my only option was to call in a favor. My roommate had purchased a massive Canon ink-jet printer designed for printing color photographs months before, and hadn't used it in a while. When I asked him if he'd mind printing forty-nine Supreme Court booklet covers on it, he graciously dug it out of his closet and hooked it up. Fortunately, the paper absorbed the ink perfectly, and I didn't have to go on a hunt for a giant ink-jet of my own after all. Unfortunately, printing on the highest quality meant that the printer went painfully slow. After about an hour, it finished printing the last page.
I still had to print the certificates of compliance and service for the Court and the other parties, and write a $300 check for the docketing fee. Fortunately, these could be printed on normal paper on a normal printer and signed with a normal pen. Life suddenly seemed so easy!
When the last page had been printed, it was Sunday at about 3:00 P.M., much later than I'd hoped to finish the first part of the project. The second part involved very carefully taking the foot-tall stack of paper out of my house and to my car so that it could be transported to the nearby FedEx Office (formerly Kinko's), which had assured me over the phone that it could saddle stitch the booklet together for twenty-five cents per booklet—a bargain! At FedEx, a friendly worker named Adrian looked at the booklet and confirmed that it would work, although the finished ones would be slightly bulky. That was fine with me. He asked if I wanted the edges trimmed, so that the middle pages wouldn't stick out so much past the edges—a natural effect of folding over so many sheets of paper. It cost another twenty five cents per booklet, he said. I thought about what the most professional thing to do would be, and agreed. He assured me that the booklets would be ready by 4:00 P.M. the following day—just enough time to go to the Post Office and mail them to Washington.
At 3:00 P.M. on Monday I drove back to FedEx to see if the booklets were ready. They were, and they looked great. I counted them to make sure they were all there, and then hurried to the Post Office, where I began the last part of the process: taping staples.
Supreme Court justices hate staples (apparently), so the Court recommends that petitioners place Scotch tape over them when saddle stitch binding is used with staples. At this point I realized I didn't know if the Court wanted me to tape the staples on the outside of the binding, or in the middle pages on the inside, where they are exposed. So I figured I'd do both. I'd brought along a roll of tape (since the Post Office is too bankrupt to supply it) and my own scissors, and stood in a sunny window for an hour cutting half-inch long pieces of tape to cover the two staples in each of the forty-nine booklets. It got warm very quickly, and was arguably the worst part of the whole process because I knew it was so close to being over.
As I was in the midst of this completely useless and arbitrary operation, a group of Chinese-speaking girls and one older male approached me and asked where they could find a stationer. Unsure if I had heard correctly, I asked them to repeat their request, and they held out a smart phone that had the English word "stationer" on it next to Chinese characters. I told them I didn't know what they meant. Finally I heard the words "pen" and "paper," and asked, "Oh, are you looking for office supplies?" They nodded vigorously. "Oh, you need to go to Staples!" I exclaimed. They thanked me, refused my offer to show them on a map, and I returned to putting tiny pieces of tape on a couple hundred more of my own staples for reasons I did not fully understand.
I had pre-printed postage on-line for a medium-size Flat Rate Priority Mail box, having calculated that the booklets should fit. In reality, they mostly fit. The box was about a half inch too short to get all forty destined for the Court in, but I did manage to get thirty-five stuffed into the box without ruining them. For the remaining five I had to pay just as much for a second Priority Mail envelope. (Lucky for me, I chose the Monday that the Post Office was again raising rates to finish the project.) I made sure I'd included all of the proper certificates and the check, and then sent everything on its way.
When I got home, irritated, nervous and exhausted, I decided to actually measure the damn booklet that I'd saved for myself. It certainly looked professional—but it was not professional enough. It was, in fact, five-sixteenths of an inch too narrow. I measured it again. It was definitely too narrow. Then I realized what had happened.
When Adrian at FedEx had offered to trim the pages at the bargain price of a quarter per booklet, he had neglected to mention the preferred method: chopping off the entire margin. So despite my having told him about the Court's required custom page size, he or some other FedEx worker took all of my booklets, put them under a giant paper cutter, and hacked off what seemed to them enough paper to get a nice clean edge.
I was extremely nervous now. It was very clear that the clerk of the Court was quite particular about the requirements. The next day during business hours I called, but no one answered. Eventually, that Friday, I got a call back from a "Mr. Harris," who said that the booklets had just arrived and they would be examined the following week. So I stressed some more.
Facing the prospect of having to re-do everything, and generally furious that I'd had to do any of it to start with (besides writing my legal brief), I decided not to leave everything to the last minute. I went back onto Craigslist and tried to find out if the more sophisticated printer I'd thought about purchasing—capable of printing fifty pages per minute double sided—was still available in Richmond, California, an hour and a half away. It was. So I got in my car and drove to Richmond in rush hour traffic.
This proved to be a mistake for two reasons. The first, of course, was that rush hour traffic near Berkeley (which Bay Area natives will recognize as the intersection of interstates 80, 580, 880, and 980) is horrible. The second was that when I finally got to see the printer, sitting in the back of a combined Mexican-Portuguese-restaurant-slash-copy-store in an impoverished part of a very clearly poor town, I instantly knew it would not fit in my car. It was enormous and weighed 160 lbs.
Luckily, the seller had a van, and generously offered to drive it down to Palo Alto the following day. I gave him an extra wad of cash for the trouble. If the Supreme Court was going to object to five-sixteenths of an inch, I'd be ready. If it didn't, I could easily start a business printing Supreme Court briefs now that I was wise to their game.
Finally, on Wednesday, Mr. Harris called again from a blocked number. My booklets had been accepted.
In the end, I spent $200 on equipment, around $20 on gas, probably another $20 on electricity (since laser printing is very energy intensive), $300 on the official fee, $95 on fancy paper, $26 on binding, and $24 on postage. Then I sold the LaserJet 5000N for $175 and bought a LaserJet 9050dn (worth nearly $4,000) for $280. My total costs therefore came to about $790, of which $490 was spent preparing the booklets. (I won't include the expense of Microsoft Word, Adobe InDesign, or the years spent acquiring desktop publishing skills because I already had all of those things, unlike the other ingredients in this crazy soup.) So I basically saved myself up to $1,410, or 75% of the quoted expense.
I also couldn't help but to use the brief itself to make a point to the Court about their Rule. Despite the strong suggestion that one ask the Court to answer no more than three questions, I added a fourth to my Petition: "WHETHER, this Court's Rules regarding document submission (e.g. Rule 33.1) and the various conflicting rules of lower courts serve the interests of justice in an age of instantaneous and costless information transmission over the internet." It's extremely doubtful that the Court will actually answer it.
Clearly, the Rule begs many questions. How can the Supreme Court reasonably expect people to file if they are not incredibly wealthy or already professional printers? Why are the dimensions required so unusual? Who cut their hand on a staple? How much does it cost the Court to process documents in this manner, and how much would using an electronic process save? And most fundamentally, if this abject nonsense is typical of the justice system at the highest levels, why do we place our trust in it at all?
It is now a few weeks later. I have some leftover giant paper, a paper cutter big enough to chop off tree limbs, and an unreasonably large, fast printer. It is unlikely the system will change anytime soon. So I have one final question. Does anyone need some Supreme Court booklets printed?