Tony Mauro has a story in Legal Times confirming that Justice Alito and Chief Justice Roberts have joined the cert pool, at least for now. (Link via How Appealing.)
For readers who aren’t familar with the cert pool, it’s basically a way of divvying up all of the petitions for certiorari filed at the Supreme Court to make sure that each petition is carefully reviewed. Something like 8,000 petitions are filed every year, and the Court only agrees to hear about 1% of those cases. To ensure that each case is considered carefully, the Justices in the cert pool divide up the petitions and each take their share; clerks for the Justices in the cert pool get a packet of cert petitions and have to write a memo for each of the cases they are assigned. Presently, all of the Justices except for Stevens are part of the cert pool.
Mauro’s piece articulates one concern about the cert pool:
With eight of nine justices participating, critics have said the arrangement gives too much power to individual clerks to determine the fate of incoming cases.
“I am concerned about the fact that only Justice Stevens has opted out at the present time,” says Florida International University law professor Thomas Baker, co-author of a text on appellate courts. “Right now, an individual law clerk has the most influence over the cert decision to grant or deny review. That clerk is often one year out of law school.”
I would express the concern slightly differently. In my view, the potential concern with the cert pool is less that it gives influence to a single law clerk than that it tends to suggest a uniform set of criteria on what kinds of cases should be granted. New law clerks quickly learn that there is a particular traditional style to writing cert pool memos, and that some things are considered more important than others. As a result, the cert pool leads to a quite uniform review process, and reasonable people can disagree on whether that is a good thing or a bad thing. My guess is that if the cert pool didn’t exist, or fewer Justices joined it, the Court would grant cert in a less predictable set of cases.
I am a little confused about the cert. pool; how can a justice opt out? Isn’t it workload that must be shared by all the justices equally?
[OK Comments: No, it's optional.]
I agree that there could be “concerns,” but I think the article is a little over the top in calling the cert pool “controversial.”
I think Aaron Ostrovsky might be under the misconception that by opting out of the cert pool, that Justice Stevens does not review petitions for cert. Instead, as I understand it, Justice Stevens and his clerks are responsible for reviewing all of the cert petitions, not just 1/9 of them, as they would if he participated in the pool.
[OK Comments: Stevens still votes, of course. FWIW, I doubt that Stevens or his clerks review all of the petitions; there's just not enough time. My sense is that they just pick the ones that look particularly interesting and give them a closer look.]
I have also heard the argument that clerks are apprehensive about recommending a case that would get denied cert. Thus, the cert pool only produces a limited class of cases, and less cases get approved each term as a result. Can any past supreme court clerks out there support this?
Certainly Stevens’s clerks review all the petitions. When I clerked for Marshall, he wasn’t part of the pool. We reviewed (and wrote a short memo on) each and every cert petition. Our reports weren’t as long or thorough as cert pool memos, but I think we gave every case enough consideration for an informed judgment on whether to grant cert.
What I’ve heard from a recent Stevens clerk: they read every petition, but only write memos on the ones they are recommending to be granted.
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Have participating justices given any thoughts to possible checks on this sytem?
For example, some random duplication of efforts might give the justices a more informed view of how effective and uniform the process is. If a random subset of the petitions were assigned to two or more clerks, the justices would have more information to confirm or challenge their view as to the adequacy of the pool.
Given the increased manpower available to the pool over time, it would seem easy enough to assign all petitions to two clerks.
[OK Comments: Chief Justice Roberts has made comments along these lines; Lyule Denniston had a post about it at SCOTUSblog that should be easy to find.]
Can someone please explain to me how anyone, let alone a recent law school grad, intelligently review 8000 briefs and write an intelligent synopsis of each? I believe the biggest influence on the granting of cert is the input of the solicitor general.
[OK Comments: Keep in mind that there are 32 clerks in the cert pool, and the 8,000 petitions are over the course of a year. That means that each clerk will write about one or two memos per day, and typically spends about 20-25% of his time on cert pool memos. Very few of those cases have SG input. Two more thoughts: 1) the goal of cert pool memos is not to write an intelligent synopsis of the case as a whole; the goal is to write an intelligent synopsis of whether the case is certworthy, 2) where you see "recent law school grad," I would insert "recent federal appellate clerk."]
Rarely is it possible to have the last word with a reporter, except for an opportunity like this one. I was quoted first by Mr. Mauro and then by Professor Kerr.
Tony Mauro is a good reporter and I frequently offer him my views for his articles. Here below the line is the full, unedited quote that I emailed him “for the record”. This might provide more context for my quotation and further thoughts for this thread.
_________________________________________
“The cert process is a kind of black box of procedure. Petitions go in; 80 grants come out along with 8000 denials. No one can say what makes a case certworthy when four justices vote to grant, just as no one can say what makes a case uncertworthy when six justices vote to deny. The SCOTUS is an institution steeped in history and tradition, a conservative institution, however, where change comes at a glacial pace. All deliberate speed, and all of that.
“The change of a CJ (and the addition of two new members) is the occasion for the Conference to review and tweak its procedures. The CJ, of course, is in charge, so to speak of the cert pool. I would not be surprised if there were some tweaking done at the end of the new CJ’s first Term. At his confirmation hearings, John Roberts admitted that as a practicing lawyer he believed the Court was taking too few cases. My own hunch is that we might expect more commercial and business cases being granted and maybe more conflicts cases will be added to the docket. But the change will be subtle because cert is totally discretionary and the discretion is equally shared by nine decisionmakers who do not require a majority to agree under the Rule of Four.
“I am concerned about the fact that only J Stevens has opted out at the present time. That is some check on the process, however.
“I think J Kennedy’s earlier idea makes some sense, i.e., for each petition one chambers would be outside the pool as a check on the pool memo on a rotating basis. There might be others.
“Right now, an individual law clerk has the most influence over the cert decision to grant or deny review. That clerk is one year out of law school, typically having served as a clerk to a circuit judge. There is a built-in incentive to recommend a denial — a mistaken recommendation that leads to a grant and then has to be DIG’d creates exposure for the clerk who recommended the grant. But a denial can never come back to haunt anyone, except perhaps for the disgruntled petitioner.”
Professor Thomas E. Baker
Florida International University
College of Law
Orin,
Is it true that clerks think that a DIG reflects poorly on them for recommending cert., or that they fear recommending cert. and having it denied? After graduating at the top of their class and editing the law review and a year at a feeder judge, are the future professors and leaders of the bar and really that insecure? My instinct is that they are not, but I haven’t been there.
Ted,
Good question. It depends, I think. The mere fact that a clerk recommends a grant but the court denies the petion isn’t at all embarassing to the clerk. On the other hand, clerks worry about the possibility of missing something, such as a jurisdictional hook, a waiver problem, a split that isn’t as big a deal as it looks, or a recurring issue that the Court has repeatedly denied. In other words, the embarassing stuff is law clerk error, not the outcome. That’s my sense, at least.
For the first two or three months of my clerkship it was truly daunting going through one-quarter of the cert. pool every week. However, the learning curve is amazingly smooth–by the end of my clerkship I could do a preliminary screening of my quarter of the pool (cutting it down to about a dozen cases)in about 90 minutes. One of the fairly recent Justices–I believe Justice Brennan–famously flipped through all the petitions himself, culling them down to a few, and then assigned a handful of discrete research tasks to his clerks. Despite all the handwringing from outsiders and cert. pool clerks about the volume of petitons, I think such a strategy remains eminently doable and is the obvious choice for at least some of the Justices. I continue to hope that a new Justice or two will give it a try.
Re Orin’s reply to Dennis’ comment: each clerk in the cert pool may have to review roughly five petitions each week ((8000/32)/52), but in a chambers not participating in the cert pool, each clerk will have to review nearly forty petititons each week ((8000/4)/52). That being the case, I have to second Dennis’ point; whatever the defects that may or may not exist in the cert pool system, I think that it surely permits a deeper and more thorough consideration of each individual petition by the clerk writing the memo.
Simon–
It’s not evident to me that a “deeper and more thorough consideration of each individual petition” is necessary or desirable, though. Out of the cert petitions filed, a majority can probably be deemed non-certworthy without a closer look, and I suspect that it’s a rare cert petition that looks at first glance like a clear “deny” but on further inspection would turn out to be certworthy. (And forty petitions a week is not such a breakneck pace that a skilled clerk couldn’t have a fairly detailed–if not that time-consuming–read through each one. Cert petitions aren’t that long, so it’s not as though they’re likely to be going unread.)
Thanks for the feedback. And for a bit of nostalgia (and some self deprecating humor), one should read the first few chapters of the late CJ Rehnquist’s book “The Supreme Court.” He writes about his first memo concerning a cert petition when he clerked for Justice Jackson. It was an appeal of a criminal conviction from Philadelphia. He still remembered it in detail almost fifty years later and seemed to have poured his heart into it.
I’m agnostic on the merits or demerits of the cert pool, but I do have experience that might be relevant to this discussion. For the 25+ years that I have been covering the court, I have looked at every paid cert petition and made my own judgment about whether the court would deem it certworthy, and whether it would be newsworthy if granted or if denied. It is in fact quite easy to cull out the handful of petitions on each conference list that require further exploration than a quick glance at the question presented. (Certainly that would also be true of the IFP petitions, which I look at only if they are relisted or if it’s a case I know about or have been following.) It’s a weekly burden but not an overwhelmingly onerous one, and what’s interesting is that the experienced members of the press corps usually agree on which petitions will or ought to be on the justices’ screen. My point is that the raw material itself, rather than variations in who reads it, tends to drive the collective judgment, and I’m not sure the court’s docket-setting function would change much if the cert pool were smaller, or non-existant.
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Linda,
Would your experience and instinct tend to bear out David’s suggestion that “a majority can probably be deemed non-certworthy without a closer look” (I take that to mean that a majority can be dismissed at first glance), and that “it’s [probably] a rare cert petition that looks at first glance like a clear ‘deny’ but on further inspection would turn out to be certworthy“?
Of course, it does bear noting that you’ve been covering the court for longer than your average clerk has been out of short trousers, so is it a foregone conclusion that a petition that might readily appear certworthy or non-certworthy at first glance to someone with your level of experience will appear in the same way to the average clerk?
I do not think the cert decision is as difficult as some think, though I certainly grant a grey area at the borders, and an element of chance.
The daunting ratio in practice, I think, is more an unwillingness of lawyers to realistically ask whether the criteria are met or a calculated decision to suffer almost certain rejection because of what is at stake for the client.
Simon- In answer to your question – yes, I think that Malcolm Gladwell-like “blink” judgments can be made on most cert petitions with a high degree of accuracy (I don’t mean deny versus grant, but a big pile of clear denials plus a small pile of “needs a further look.”) I also agree with John Lederer that lawyers charge their clients for filing an appallingly large number of ill-considered and doomed cert petitions. As to Simon’s further question about the law clerks’ learning curve – I’m assuming they are smart enough to cotton onto this quite quickly, and I would hope they would have the added benefit of actually getting some feedback from their justices.