Pro Se Litigants before the Supreme Court
Ever since I began volunteering as a Duty Counsel as part of Pro Bono Ontario’s Amicus project at the Court of Appeal for Ontario, I have been fascinated by the obscure subject of pro se litigants appearing before the Supreme Court. I am not referring to pro se litigants at the leave stage (Canada) or certiorari stage (America) but rather once leave or certiorari has been granted. If there is ever an Amicus project at the Supreme Court of Canada I would hope to be one of the first to sign up for it.
Starting first with the American context, the last pro se litigant to argue a case before the nine justices of the Supreme Court was Samuel H. Sloan. He accomplished this rare feat in 1978 in the case of Securities and Exchange Commission v. Sloan 436 US 103 (1978). In brief, the case dealt with several ten-day suspensions of Sloan’s broker dealer registration. Sloan was repeatedly being hit with ten-day suspensions of his license, which seemed to be going on indefinitely. The U.S. Supreme Court went on to rule 9-0 in Sloan’s favor that continuous ten-day suspensions for an undefined period of time violated his right to due process and was an abuse of the SEC’s authority. The case was argued in March 1978, and it involved a rather amusing exchange between Chief Justice Warren Burger and Sloan over the later’s rather tardy appearance in Court. The exchange went as follows and can be found in the audio of the March 27, 1978 oral argument on the site Oyez Oyez (https://www.oyez.org/cases/1977/76-1607):
CHIEF JUSTICE BURGER: Mr. Sloan, before you commence your argument, when the court granted you leave to appear in this case you received a notice, the usual notice to counsel, did you not?
SAMUEL H. SLOAN: No, I haven’t received anything since the time it was one week ago that I was advised I would be allowed to argue and I have not received anything.
CHIEF JUSTICE BURGER: Nothing?
SAMUEL H. SLOAN: No.
CHIEF JUSTICE BURGER: March 1st letter you have not received?
SAMUEL H. SLOAN: No I haven’t.
CHIEF JUSTICE BURGER: Are you aware that the Rules of the Court require that counsel who is to argue is to register with the Deputy Clerk in Room 22 (d) at 9 a.m. or shortly after that on the day assigned for argument?
SAMUEL H. SLOAN: No, I am not aware of that rule.
CHIEF JUSTICE BURGER: Well, you better check your mail as you are in violation of that rule. You did not appear here until 2:30 today. The court can’t organize its business if it doesn’t know that arguing counsel is going to be present. Now you may proceed.
The rocky start of being 5.5 hours late to register for oral argument notwithstanding, Sloan went on to win his appeal. In fact, in my opinion, his oral argument was excellent and compelling. But he was the last of his kind. In 2013 the U.S. Supreme Court specifically modified its Rules (Rule 28.8) to bar pro se litigants from arguing cases before the Court.
In Canada, we still allow self-represented litigants to argue cases pro se before the Supreme Court of Canada if they so choose. I was able to track down one such case wherein there was a video from the Supreme Court. However, during the portion wherein the pro se litigant was presenting oral argument, the video blocked any image of her face. All one can hear is a voice. As soon as counsel for the other parties and interveners spoke, the video image came back on. The Rules of the Supreme Court of Canada (Rule 92) allow the Court or a judge to appoint amicus curiae in any case. Presumably this would be an option to be exercised in cases wherein a self-represented litigant chooses to plead their own case before the Court.
It is difficult to get any case before either the Supreme Court of Canada or the United States Supreme Court. In fact, it is hard to imagine a case where no lawyer is acting for a party after leave or cert has been granted. With that said, there appears to be no specific reason to deny self-represented litigants the right to plead their own case if they so choose. It is unfortunate that the U.S. Supreme Court has chosen to bar pro se litigants from oral argument. While it is preferable to have a lawyer, the right to plead one’s own case, pro se, is as fundamental as any other right. Further, there would certainly be no shortage of lawyers willing to take on the role of Amicus to buttress any arguments and to assist a self-represented litigant or to act pro bono for the party. With that said, if the goal is to win the case, a self-represented litigant is always better off with a lawyer.