Notice - Proposed Amendments to the Court Rules for Briefs in Appeals Before the Supreme Court (“Merits Briefing”) - Comments Requested by December 3, 2025

This Notice publishes for public comment proposed amendments to the Rules of Court governing briefing practices for appeals before the Supreme Court. In short, the Court is inclined to adopt the practice of “merits briefing” for Supreme Court appeals. This model is used in federal courts and, in the Court’s preliminary view, would offer numerous benefits for the Court, the parties, and the public. The Court reached this proposal after careful study and discussion with stakeholders, including the Office of the Attorney General, the Office of the Public Defender, members of the private bar, and other frequent amicus participants. 

Overview of Current Practice

Currently, the Rules do not provide for merits briefing after the Court takes an appeal. Thus, the parties’ briefs on the petition for certification (together with the Appellate Division briefs) or on the motion for leave to appeal become the parties’ briefs on appeal. In criminal matters, the Court typically orders supplemental briefs, which supplement, rather than supplant, the briefs that preceded them. In other case types (e.g., civil, family, administrative agencies), the Court does not receive briefing on the appeal unless the parties move for supplemental briefing. Because there is no time limit for such motions, motions for supplemental briefing can delay the scheduling of an appeal. 

In addition to delay, the reliance on multiple briefs – all filed before the Court’s grant of the appeal – can result in imprecision regarding the issue(s) before the Court and the parties’ arguments on those points. It also results in confusion by the public who must trace the parties’ arguments across multiple briefs, in filings often incorporated by reference.

Finally, the current system renders all amicus motions due on a single date (75 days after the posting on the Court’s website). That results in multiple rounds of briefing and, typically, extension motions, all of which occurs after the parties’ briefs are filed and the appeal is otherwise ready for oral argument.

Overview of “Merits Briefing”

In the proposed “merits briefing” model, the Rules would provide a standard schedule for the parties to file briefs on the merits of the appeal after the Court has granted certification or leave to appeal. 

In addition, the time for filing amicus motions would be embedded within the parties’ briefing schedule rather than occurring thereafter. For example, in the U.S. Supreme Court, proposed amici file their briefs 7 days after the party that they support. If the proposed amicus party does not support either party, it must file 7 days after the appellant’s brief is filed. Using that approach, the parties respond to the merits of their adversaries’ position(s) in the same brief as the merits of the amici that support their adversaries. Because the amicus motions occur roughly contemporaneously with the filing of the parties’ briefs, proposed amici are not permitted to file motions for extensions of time.

In addition, because amici do not have the burden of including a detailed factual recitation and procedural history, among other details specific to the parties to the litigation, the proposed amendments reduce the page number for amicus briefs from 50 to 30 pages.

Proposed Schedule for “Merits Briefing”

The proposed “merits briefing” schedule under consideration is as follows:

• Appellants file 40 days from the date of the order
  • (with any amici in support filing 10 days later)
• Respondents file 30 days from the date of the appellant’s deadline
  • (with any amici in support filing 10 days later)
• Appellants file a reply brief 24 days from the respondent’s deadline

The proposed schedule aligns closely with the schedules applicable in the Supreme Court and the Court of Appeals for the Third Circuit:

Summary of Amendments

With merits briefing, two critical shifts would streamline appeals and improve public access to the parties’ arguments:

1. The parties’ merits briefs would include all of the arguments on the issues before the Court in a single brief; the public would no longer have to navigate the petition papers, appellate materials, and other briefs to understand the argument the parties are making before the Supreme Court. This would be of particular value where the parties’ positions have evolved over time, the arguments have been reframed, or the emphasis of the appeal has shifted due to intervening events. In addition, it would help the parties organize their briefs and plan their arguments by knowing that there will be merits briefing at the appeal phase and that they need not shoehorn their substantive arguments into the petition or motion briefs.
    
2. Importantly, amicus participation would no longer be tethered to a 75-day timeline for proposed participants. Rather, just as in federal court, the proposed amici would file their submissions shortly after the parties they support on appeal. This would allow the parties to address amici’s positions simultaneously with their adversaries’ positions. The result should be more concise presentations, with more organized arguments and fewer briefs (since parties will no longer be filing a separate response to every single amicus brief). The process also should yield fewer delays, given the reduction of motion practice attributable to supplemental briefing and extensions related to amicus motions. This will allow for a more expeditious resolution of matters of public importance.

^{1 Supreme Court Rule 25 (parties’ briefs) and Rule 37(3)(a) (amicus briefs).
2 The Third Circuit sets forth a briefing schedule in a briefing letter, with the typical schedule as set forth in the chart. See F.R.A.P. Rule 31 and Rule 29.}

Comments

Please send any comments in writing by Wednesday, December 3, 2025 to:

Clerk of the Supreme Court
Comments on Proposed Rule Amendments re: Merits Briefing
Hughes Justice Complex; P.O. Box 970
Trenton, New Jersey 08625-0970

Comments may also be emailed to  Comments.Mailbox@njcourts.gov

The Supreme Court will not consider comments submitted anonymously. Thus, those submitting comments by mail should include their name and address and those submitting comments by email should include their name and email address. Comments submitted in response to this notice are subject to public disclosure.