The Supreme Court issued a Notice, available here, that proposes to revolutionize the process for briefing in the Supreme Court. If adopted, the new procedures would require substantial revisions to Rule 2:12, which currently governs Supreme Court briefing.

The Notice summarizes the current procedures and identifies reasons to change them. “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.”

The new procedures would adopt the “merits briefing” model currently used in the Supreme Court of the United States and in the Circuit Courts of Appeals. Under the proposed scheme, “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.”

The proposed “merits briefing” schedule currently under consideration would have the appellant or petitioner file 40 days from the date of an order granting review. Amicus briefs in support of that side would be due 10 days later. The respondent would file 30 days from the date that the petitioner/appellant’s submission is due, with amicus brief in support of the respondent due 10 days later. Finaly, the reply brief would be due 24 days after the respondent’s deadline.

The Notice closes by summarizing two ways in which the proposed “merits briefing” plan 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.

The Court invites written public comments on this proposed change, with a deadline of December 3, 2025. Comments may be sent 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, or by email to comments.mailbox@njcourts.gov.