Tuesday, January 14, 2014

Cert Pool, SCOTUS

Cert Pool, Wikipedia

The "cert pool" is a mechanism by which the U.S. Supreme Court manages the influx of petitions for certiorari ("cert") to the court. It was instituted in 1973, as one of the institutional reforms of Chief Justice Warren E. Burger. 

Purpose and operation

Each year, the Supreme Court receives thousands of petitions for certiorari; in 2001 the number stood at approximately 7,500,[1] and had risen to 8,241 by October Term 2007.[2] The Court will ultimately grant approximately 80 to 100 of these petitions,[3] in accordance with the rule of four. The workload of the court would make it difficult for each Justice to read each petition; instead, in days gone by, each Justice's law clerks would read the petitions and surrounding materials, and provide a short summary of the case, including a recommendation as to whether the Justice should vote to hear the case.

This situation changed in the early 1970s, at the instigation of Chief Justice Warren E. Burger. In Burger's view, particularly in light of the increasing caseload, it was redundant to have nine separate memoranda prepared for each petition and thus (over objections from Justice William Brennan) Burger and Associate Justices Lewis Powell, Byron White, Harry Blackmun and William Rehnquist created the cert pool.[4] Today, all Justices except Justice Samuel Alito participate in the cert pool.[5] Justice Alito withdrew from the pool procedure late in 2008.[6]

The operation of the cert pool is as follows: Each participating Justice places his or her clerks in the pool. A copy of each petition received by the Court goes to the pool, is assigned to a random clerk from the pool, and that clerk then prepares and circulates a memo for all of the Justices participating in the pool. The writing law clerk may ask their Justice to call for a response to the petition, or any Justice may call for a response after the petition is circulated.[7]

It tends to fall to the Chief Justice to "maintain" the pool when its workings go awry:

Rehnquist memos in the Blackmun files chide the clerks for submitting the memos too late and too long, and for leaving copies in the recycling bin — a major security breach. But a 1996 note to pool law clerks is perhaps the most intriguing, suggesting Rehnquist was concerned that clerks might be shading their summaries to reflect biases. Rehnquist reminded the clerks that cases are assigned to them for summarizing "on a random basis" partly "to avoid any temptation on the part of law clerks to select for themselves pool memos in cases with respect to which they might not be as neutral as is desirable."—[8]

The same note went on to observe, with typical Rehnquist understatement, that "[t]his sort of trade has the potential for undermining the policy of random assignment of memos, and is, to put it mildly, 'not favored.'"[9]

Criticisms
The cert pool remedies several problems, but creates others.

Memos prepared for an audience of nine cannot, by definition, be as candid as private communications within chambers; moreover, they must be written in far more general terms.
 
The fate of a petition may be disproportionately affected by which clerk writes the pool memo:

    [Cert] pool memos should ideally be balanced and nonideological. But my memory is that it mattered a great deal which case wound up with which clerk. For example, a hard-luck petition by a death-row inmate was likely to get a far more sympathetic hearing in a more liberal chambers than it would in a more conservative chambers . . . On the other hand, a messy regulatory takings petition was far more likely to get a thorough airing if it happened to land on the desk of a clerk in a conservative chambers. —[10]

Prof. Douglas A. Berman has argued that the cert pool substantially weights the preponderance of capital cases on the court's docket.[11][clarification needed]

Lyle Denniston of SCOTUSblog has argued that the cert pool is partially responsible for the Court's shrunken (by historical standards) docket.[12]. Read more

fn4. It is possible that Burger took inspiration for the cert pool from the manner in which the Court had been handling in forma pauperis petitions. From the tenure of Chief Justice Charles Evans Hughes until at least Burger's arrival, IFP petitions would go not to all chambers, but to the Chief Justice's chambers only, where the Chief's clerks would prepare a memo circulated to all other chambers, in a very similar manner to the cert pool's operation. Read more
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Office of the Solicitor General
Donald B. Verrilli, Jr., Solicitor General of the United States

Donald B. Verrilli, Jr. was sworn in as the 46th Solicitor General of the United States on June 9, 2011. The task of the Office of the Solicitor General is to supervise and conduct government litigation in the United States Supreme Court. Virtually all such litigation is channeled through the Office of the Solicitor General and is actively conducted by the Office. The United States is involved in approximately two-thirds of all the cases the U.S. Supreme Court decides on the merits each year. Read more
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THE SOLICITOR GENERAL’S CHANGING ROLE IN SUPREME COURT LITIGATION
Margaret Meriwether Cordray and Richard Cordray
Boston College Law Review, Vol. 51:1323


Abstract: Over the last two decades, as the Supreme Court has sharply cut back its case load, the Solicitor General has wielded the tremendous influence that comes with being the Court’s most frequent and successful litigant in new ways. In this Article, the authors examine both the causes and consequences of these changes, which have diminished the Solicitor General’s role at the certiorari stage and expanded it at the merits stage. They find that at the certiorari stage, when the Court is selecting its cases and setting its agenda, the Solicitor General is now seeking certiorari in so few cases—just fifteen per Term—that the Solicitor General is ceding the federal government’s once-substantial influence over the Court’s agenda-setting to more aggressive litigants. At the merits stage, in contrast, the Solicitor General is now participating in over three-quarters of the Court’s cases, and is doing so more frequently as amicus curiae than as a party. The authors address concerns that, with this nearly pervasive involvement, the Solicitor General may have become too intrusive in private litigation or too partisan in cases presenting high-profile, socially controversial issues. They find, however, that solicitors general have acted within their proper constitutional role, largely confining involvement as amicus to cases that directly and substantially affect the federal government’s institutional interests. Read more
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Solicitor General Influence and the United States Supreme Court
Ryan C. Black, Michigan State University
Ryan J. Owens, Harvard University

Abstract: Do Solicitors General influence Supreme Court justices to behave differently than they would like? Previous studies examining this question largely suffer from observational equivalence problems, limiting their findings. We employ unique archival data collected from the private papers of former Justice Harry A. Blackmun and find strong support for Solicitor General influence. In a substantial number of cases at the Supreme Court's agenda-setting stage, justices follow the Solicitor General's recommendations even when they are completely opposed to them. At the same time, we find that this influence is not boundless. Justices tend to discount Solicitors who favor policy at the expense of law. Read more
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An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General
George Mason Law Review, Vol. 16, No. 2, 2009
David C. Thompson

 Melanie Wachtell

Abstract: The Supreme Court frequently uses two tools to gather information about which cases to hear following a petition for writ of certiorari: the call for response and the call for the views of the Solicitor General. To date, there has been no empirical analysis of how the Supreme Court deploys these tools and little qualitative study. This Article fills in basic gaps in the literature by providing concrete answers to common questions regarding these two tools and offers detailed analysis of how and why states, private parties, and the United States (through the Solicitor General) respond to petitions. In addition, the Article provides much-needed data for litigators and litigants to be able to estimate the probability of their case being heard by the Court, and provides insight on how to react when the Court calls for a response or calls for the views of the Solicitor General. To reach these conclusions, the Article relies on detailed, quantitative analysis of a novel, 30,000-petition dataset, as well as interviews with top Supreme Court litigators, former Supreme Court clerks, and former staff of the Clerk’s office. 66 page PDF. Read more
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Procedures of the Supreme Court of the United States, Wikipedia

The Supreme Court of the United States is the only court specifically established by the Constitution of the United States, implemented in 1789. This article is concerned with the process and procedures used by the modern court. Read more

Selection of cases

Since the Judiciary Act of 1925 ("The Certiorari Act" in some texts), the majority of the Supreme Court's jurisdiction has been discretionary.[3] Each year, the court receives approximately 9,000–10,000 petitions for certiorari, of which approximately 80–100 are granted plenary review with oral arguments, and an additional 50 to 60 are disposed of without plenary review.[4][5]

The Court strictly enforces its requirements for the preparation and timely filing of certiorari petitions, in order to manage such a massive caseload. This occasionally results in harsh consequences, as Justice Thomas acknowledged in a 2007 opinion: "Just a few months ago, the Clerk, pursuant to this Court’s Rule 13.2, refused to accept a petition for certiorari submitted by Ryan Heath Dickson because it had been filed one day late ... Dickson was executed on April 26, 2007, without any Member of this Court having even seen his petition for certiorari. The rejected certiorari petition was Dickson’s first in this Court, and one can only speculate as to whether denial of that petition would have been a foregone conclusion."[1]

In theory, each Justice's clerks write a brief for the Justice outlining the questions presented, and offering a recommendation as to whether certiorari should be granted; in practice, most Justices (all of the current court, except Justice Alito) have their clerks participate in the cert pool.[6][7]

During the Justices' regular conference, the Justices discuss the petitions, and grant certiorari in less than five percent of the cases filed. (During the 1980s and 1990s, the number of cases accepted and decided each term approached 150 per year; more recently, the number of cases granted has averaged well under 100 annually). Before each conference, the Chief Justice prepares a list of those petitions he believes have sufficient merit to warrant discussion. Any other Justice may also add a case to the "discuss list"; cases not designated for discussion by any Justice are automatically denied review. The Court or a Justice may also decide that a case be "re-listed" for discussion at a later conference; this occurs, for example, where the Court decides to request input from the Solicitor General of the United States on whether a petition should be granted.[8]

The votes of four Justices at Conference (see Rule of four) will suffice to grant certiorari and place the case on the court's calendar. If the Supreme Court grants certiorari (or the certified question or other extraordinary writ), then a briefing schedule is arranged for the parties to submit their briefs in favor of or against a particular form of relief. During this time, an individual or group having an interest in a case but is not a party to the case may submit a motion to appear before the court as amicus curiae ("friend of the court"). Except for certain specific categories (such as lawyers for state and local governments) or where all parties to the case consent, it is in the Court's discretion whether such motions are granted.

The grant or denial of certiorari petitions by the Court are usually issued as one-sentence orders without explanation. Cases that fall within the Court's original jurisdiction are initiated by filing a complaint directly with the Supreme Court, and normally are assigned to a special master appointed by the Court for the taking of evidence and making recommendations, after which the Court may accept briefs and hear oral arguments as in an appellate case. Read more
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Supreme Court Case Selections Act, Wikipedia

The Supreme Court Case Selections Act of 1988 (Pub.L. 100–352, 102 Stat. 662, enacted June 27, 1988, codified at 28 U.S.C. § 1257) is an act of Congress that eliminated appeals as of right from state court decisions to the Supreme Court of the United States.[1][2] After the Act took effect, in most cases, the only avenue by which a litigant could obtain review of most lower court decisions was through the writ of certiorari, which was granted at the discretion of the Supreme Court, rather than available to the litigant as a matter of right. Read more
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Judiciary Act of 1925, Wikipedia

The Judiciary Act of 1925 (43 Stat. 936), also known as the Certiorari Act, was an act of the United States Congress which sought to reduce the workload of the Supreme Court of the United States.Although the Judiciary Act of 1891 (which created the United States courts of appeals and rendered a small part of the Supreme Court's jurisdiction discretionary subject to grant of writ of Certiorari) had relieved pressure on the Supreme Court's docket, the court remained obliged to rule:on the merits all cases appealed to it over which it had jurisdiction … [after the 1891 act, ] Congress gave the Court discretionary review authority over appellate decisions in diversity, patent, revenue, criminal and admiralty cases. Parties wishing to appeal such cases would file a petition for certiorari, which the Court could grant or deny without passing on the merits.[1]. Read more
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Judiciary Act of 1891, Wikipedia

The Judiciary Act of 1891 (26 Stat. 826), also known as the Evarts Act after its primary sponsor, Senator William M. Evarts, created the United States courts of appeals, and reassigned the jurisdiction of most routine appeals from the district and circuit courts to these appellate courts. Because of this, it is also called the Circuit Courts of Appeals Act. Read more
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How Not To Be Chief Judge: The Apprenticeship of William H. Rehnquist, Linda Greenhouse
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Roberts, the cert pool, and sentencing jurisprudence
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