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.