Every Supreme Court opinion begins with a caption. In most cases, the caption is mundane. But in some cases, the caption makes an important point. Sometimes, the court of appeals will style a case in one fashion while the petitioner styles the case in a different fashion. What is the rule? Does the Supreme Court defer to the lower court’s styling of the case or to the Petitioner’s styling of the case or to the Respondent’s styling?
In July 2024, West Virginia filed a cert petition in a case styled, STATE OF WEST VIRGINIA, ET AL., Petitioners, V. B.P.J., BY NEXT FRIEND AND MOTHER, HEATHER JACKSON, Respondent. There was no female pronoun in the caption. It was “by next friend,” not “by her next friend.”
B.P.J.’s brief in opposition to cert, filed by the ACLU in October 2024, used the same caption, and did not include a female pronoun.
The Supreme Court’s docket page included the female pronoun “her.” The Internet Archive captured the page in early November, shortly after the BIO was filed. Again, this caption was set before the case before the case was conferenced.
Here, at least, the Court followed the Fourth Circuit’s decision, which used the pronoun “her.”
But both parties chose a caption that omitted the pronoun. And the Court disregarded that choice. Indeed, this choice truly matters. West Virginia’s entire argument was that B.P.J. is not a she/her, but is a he/him.
The ultimate decision included the female pronoun.
Justice Kavanaugh’s majority opinion avoided any female pronoun to refer to B.P.J. Likewise, Justice Gorsuch’s concurrence avoided any female pronoun to refer to B.P.J. By contrast, Justices Sotomayor and Jackson in dissent repeatedly used female pronouns.
There is some history here. Back in 2017, the Supreme Court’s clerk’s office chastised litigants who refused to use the male pronoun in amicus briefs in Gloucester County School Board v. G.G. Ed Whelan described the controversy in a three–part series. At the time, the Clerk stated that parties were required to follow the name of the case as docketed.
Under that rule, the parties In B.P.J., were obligated to follow that proposed caption. But the parties did not follow that caption.
West Virginia’s merits brief did not include a female pronoun.
And the ACLU’s merits brief likewise did not include the female pronoun. I wonder if any of the lawyers noticed, or if they just copied the template from the earlier briefing.
In short, only the Supreme Court, and not the parties, included a female pronoun for B.P.J.
I emailed the Court’s public information office, and received this response:
The Clerk’s Office followed it’s standard practice of using the caption language of the court of appeals.
I can think of at least one contrary example, Sossamon v. Texas.
As the case was litigated in the lower court, the defendant was styled as “The Lone Star State of Texas.”
The cert petition, however, only listed the respondent as “Texas.”
The Supreme Court’s docket, and the ultimate decision, did not defer to the Fifth Circuit’s ruling. Rather, the Supreme Court adopted the Petitioner’s styling.
Fast-forward about fourteen years. The Fourth Circuit decides a case titled Planned Parenthood S. Atlantic v. Kerr. A cert petition was filed by ADF in a case styled as Kerr v. Edwards. ADF chose to name the case after Edwards, one of the Medicaid clients of Planned Parenthood. (One can imagine there were strategic reasons for doing so.) The brief in opposition filed by Planned Parenthood was styled as Kerr v. Planned Parenthood South Atlantic. Before the case was conferenced, the Court chose the style of the Fourth Circuit, and included Planned Parenthood as the lead respondent.
I welcome emails pointing out any other relevant examples.
