In Blatant Power Grab, D.C. Circuit Tells Lawyers to Stop Using Garamond

Claude Garamond, now banished from the D.C. Circuit

In a notice issued on March 16, the clerk of the U.S. Court of Appeals for the D.C. Circuit informed lawyers that the Garamond typeface would no longer be welcome there. “The court has determined,” Mark Langer wrote, “that certain typefaces, such as Century and Times New Roman, are more legible than others, particularly Garamond, which appears smaller than the other two typefaces.” Accordingly, he continued, the court had revised its Handbook of Practice and Internal Procedures “to encourage the use of typefaces that are easier to read and to discourage use of Garamond.”

This, of course, is blatantly unconstitutional.

As always, we begin our analysis with the Constitution itself, which plainly sets forth that only … well, I guess it doesn’t specify any particular typeface. I believe the practice at the time was to allow any font that included a giant S, but for whatever reason the text itself is silent on this matter. Well, then what does the Constitution say about federal court procedures? Oh, nothing at all? Okay, then what does it say about federal court? It says there should be one? And that’s all it says? Who wrote this thing, anyway?

In fact, the Constitution says almost nothing about the federal court system. It doesn’t even require a system. Just one. “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Art. III, § 1. It doesn’t even say how many justices the Supreme Court should have, though I hope we can agree there’d have to be at least one. (The current number, nine, was set in 1869. It’s not, like, in the Bible or something.) If Congress feels like it, it can create other federal courts that aren’t supreme, but it doesn’t have to. Otherwise, Article III just says when the federal court(s) will have jurisdiction, says a couple things about trials, and limits the definition of “treason.” And when I say “limit,” I mean that crime is so limited that not even Donald Trump committed it. See What Is Treason?” (July 29, 2016) (not yet updated, but same answer today). But other than those sparse provisions, Article III doesn’t say much about the federal courts. Certainly, not a word about fonts. (I know that “font” and “typeface” aren’t exactly the same thing, but I’m going to use them interchangeably, nerd.)

Congress has, of course, chosen from time to time to ordain and establish inferior federal courts. At this time, there 13 federal circuit courts (the courts of appeal) and 94 district courts within those circuits. Are there any rules that govern procedure in those courts? Oh, you bet your ass there are. There are lots of rules. Where did they come from? Congress? Nope. Oh no. You see, for the most part, Congress finds the rules of court procedure just as boring as you do. It has taken some interest in the rules of evidence, but mostly Congress has been more than happy to delegate the power to make procedural rules to the judicial branch. All courts’ rules have to be consistent with federal law, of course, and lower courts’ rules also have to be consistent with rules prescribed by the Supreme Court.

That last part is the problem here.

The Supreme Court has used its authority to create rules for the Courts of Appeal, and one of those is Federal Rule of Appellate Procedure 32: “Form of Briefs, Appendices, and Other Papers.” Most litigators will be familiar with this rule and others like it, which define what your paperwork is supposed to look like. They don’t tell you what words to write down, unfortunately. You have to think those up yourself. But they do define things like margins, spacing, and yes, even fonts. What does FRAP 32 say about fonts? This:

(5) Typeface. Either a proportionally spaced or a monospaced face may be used.

(A) A proportionally spaced face must include serifs, but sans-serif type may be used in headings and captions. A proportionally spaced face must be 14-point or larger.

(B) A monospaced face may not contain more than 10 1/2 characters per inch.

(6) Type Styles. A brief must be set in a plain, roman style, although italics or boldface may be used for emphasis. Case names must be italicized or underlined.

Fed. R. App. P. 32(a)(5).

So … still almost nothing. It says you must use a “proportionally spaced” plain, roman typeface with serifs that’s 14 points or larger. (No, I don’t care what it says about monospaced typefaces, and neither should you. That would mean Courier would be acceptable. I mean, Courier? Are you opposed to toilets that flush, too? Good God.) But that’s all it requires.

Well, so the D.C. Circuit has just picked certain fonts that it likes and doesn’t like. What’s the big deal? It’s not like they’re demanding people use Courier. Short of that, which I think the Eighth Amendment would prohibit, why can’t it do what it wants?

Because FRAP 32 also says this:

(e) Local Variation. Every court of appeals must accept documents that comply with the form requirements of this rule and the length limits set by these rules. By local rule or order in a particular case, a court of appeals may accept documents that do not meet all the form requirements of this rule or the length limits set by these rules.

Fed. R. App. P. 32(e) (emphasis added).

Emphasis added. That’s a Supreme-Court-imposed rule, and so lower courts’ rules have to be consistent with it. And the rule says every circuit must accept any document that complies with FRAP 32. The circuits can choose to accept documents that don’t comply, such as when they allow somebody to exceed the usual page limits. But they can’t impose their own requirements. The Advisory Committee (yes, of course there’s a committee on this) was very clear about this when the provision was adopted in 1998:

Subdivision (d). Local Variation.

A brief that complies with the national rule should be acceptable in every court. Local rules may move in one direction only; they may authorize noncompliance with certain of the national norms. For example, a court that wishes to do so may authorize printing of briefs on both sides of the paper, or the use of smaller type size or sans-serif proportional type. Local rules may not, however, impose requirements that are not in the national rule.

Adv. Comm. Note to 1998 Amendments, subd. (d) (emphasis added again).

Does the national rule require Century or Times New Roman, or require that you not use Garamond? No it does not. Ergo, the D.C. Circuit may not impose those requirements upon you.

And, not coincidentally, the court hasn’t actually amended its local rule. It only announced (in, what is that, Arial?) that it has revised its handbook, which is advisory, to “encourage” the use of the good typefaces and “discourage” the now-despised Garamond. Local Rule 32 does not even mention Garamond, in fact, stating only that font size must be 14 points or larger, “preferably in Times New Roman” or a Font That Shall Not Be Named. The court has, almost certainly, not amended its rule because it knows that to officially banish Garamond would violate FRAP 32(e), thus exceeding the scope of the rulemaking power delegated to the judicial branch by Congress, thereby violating the separation of powers, one of the most fundamental principles on which this Republic was founded, creating a constitutional crisis on a scale this this nation has not seen since … oh, since January, I guess.

So, with all this in mind, I trust you will do the right thing the next time you file a document in the D.C. Circuit. Which, obviously, is to use Century or Times New Roman, not Garamond. I mean, are you stupid? They can’t force you to use any particular font, no, but why would you use one they just said they think is hard to read? Do you want them to read your document or hate it? That’s what I thought. Garamond’s fine and all, but it doesn’t look good on some screens, which more and more judges are using to read briefs. Times New Roman is okay, but Century Schoolbook is good too. Or try one of the many alternatives that Matthew Butterick recommends in his terrific book Typography for Lawyers, which you should own, at least if you’re a lawyer. If you’re not … well, reading this probably hasn’t increased your desire to become one. But it’s still a good book.

Ridiculous as this is, I find it mildly comforting that the D.C. Circuit recognizes it does not have the power to mandate this. Yes, the rule of law may be gasping for life, but if the government can’t force you not to use Garamond—and it can’t—then it’s not completely dead.

Maybe mildly was too strong a word.