Friday, January 17, 2014

More Cert Pool - US Supreme Court

Justice Harry A. Blackmun
Information on Case Selection, Cert Pool Memoranda
Digital Archive of the Papers of Harry A. Blackmun

Lee Epstein, Provost Professor of Law and Political Science
Rader Family Trustee Chair in Law

Each term the Supreme Court receives over 7,000 requests for review, most of them petitions for writs of certiorari ("cert"). And, each term, the justices reject roughly 99 percent of these requests, meaning that they hear and decide (grant "cert") less than 100 cases.

The 7,000 or so petitions face several checkpoints along the way, which significantly reduce the amount of time the Court, acting as a collegial body, spends on deciding what to decide. The staff members in the office of the Supreme Court clerk act as the first gatekeepers. When a petition for certiorari arrives, the clerk's office examines it to make sure it is in proper form, that it conforms to the Court's precise rules. For example, briefs must "be produced on paper that is opaque, unglazed, and not less than 60 pounds in weight, and shall have margins of at least three fourths of an inch on all sides." Exceptions are made for litigants who cannot afford to pay the Court's fees. The rules governing these petitions, known as in forma pauperis briefs, are somewhat looser, allowing, for example, indigents to submit briefs on 8 1/2 by 11-inch paper. The clerk's office gives all acceptable petitions an identification number, called a "docket number," and forwards copies to the chambers of the individual justices.

 Each justice reviews the petitions, making independent decisions about which cases he or she feels are worthy of a full hearing. Eight of the nine justice use the "certiorari pool" in which clerks from different chambers collaborate in reading and then writing memoranda on the petition. (Only Justice Alito does not participate in the pool.)

BlackmunDocket 93-1543-Cert-Pool-All-12p
BlackmunDocket May31-1994-Cert-Pool-Discuss-List
BlackmunDocket 93-1251-Cert-Pool-vote
BlackmunDocket 93-1546-Cert-Pool-vote
BlackmunDocket 93-1636-Cert-Pool-vote

Justice Sonia Sotomayor
The Cert Pool: Sotomayor Joins It, Lawyers Attack It
Blog of Legal Times
September 21, 2009

As expected, new Supreme Court Justice Sonia Sotomayor has joined the Court's so-called cert pool, at least for now.

Court public information officer Kathy Arberg confirmed that Sotomayor is participating in the controversial pooling arrangement, whereby the thousands of incoming certiorari petitions are divvied up among the clerks of the justices who participate. Each petition is read by one of the pool clerks, who writes a memo recommending whether to grant review. The memo is then distributed to the justices in the pool, with the memo often constituting the only morsel of information about the case that the justices read before deciding whether to grant or deny cert.

Because of the pivotal role the pool memo plays, the cert pool has been criticized for giving individual clerks have too much power in the all-important gatekeeping function. The pool, aimed at streamlining the petition review process, was first instituted in 1972.

At her confirmation hearing in July, Sotomayor was asked her intentions regarding the pool. It was clear she had already given it some thought, and she indicated then that "my approach may be similar to Justice Alito's." Samuel Alito Jr. joined the pool when he joined the Court in 2006, but he jumped out after the 2007-2008 term. In an interview last October, Alito told us  that he "just wanted to see what it would be like" to quit the pool and screen petitions in his own chambers. So far, he was pleased. Alito thus became the second justice on the current Court -- the other is John Paul Stevens -- to stay out of the pool. Read more

The SCOTUS Cert Pool – A Basic Introduction
Fire Dog Lake, By Crane-Station, September 6, 2012 ______________________________________________________________________

Elena Kagan
Kagan and the Cert Pool: Should She Jump In?
Above the Law
By David Lat
June 8, 2010

The confirmation hearings for Solicitor General Elena Kagan, nominated to replace Justice John Paul Stevens on the Supreme Court, are currently scheduled to start on Monday, June 28... But most observers expect little confirmation drama...Last month, Columbia law professor Jamal Greene raised the cert pool issue on the NYT’s Room for Debate blog. Read more

Jamal Green
Room For Debate: What Kagan Will Bring to the Court 
The New York Times
by Jamal Greene

A Balance to Justice Alito

One of the most important (and least sexy) ways in which a future Justice Kagan could influence the Supreme Court is in her decision whether to join the "cert pool." Unlike a lower court, the Supreme Court generally chooses which cases it decides to hear. Currently, the clerks for seven of the nine Justices "pool" the applications for certiorari and share a single memo for each petition, with the work split among the clerks.

The cert pool has been criticized (correctly, in my view) for discouraging the clerks from sticking their necks out to call the Justices’ attention to certain petitions. Justice Stevens never joined the pool, which means that each and every one of the 8,000-plus petitions the Court receives every year is read by someone in his chambers.

If Elena Kagan does not follow Justice Stevens’s example, it would leave Justice Alito as the only justice whose clerks read every petition. That would upset what I regard as a healthy liberal-conservative balance among the chambers not participating. Even if a Justice Kagan were identical to Justice Stevens on every decision, she could still have an important impact on which cases are heard. Read more

Jamal Greene, is an associate professor at Columbia Law School and a former clerk for Justice John Paul Stevens.

A Second Justice Opts Out of a Longtime Custom: The ‘Cert. Pool’
The New York Times
September 25, 2008

WASHINGTON — Justice Samuel A. Alito Jr. is getting out of the pool.

For almost 20 years, eight of the nine justices on the Supreme Court have assigned their law clerks to a shared legal labor pool that streamlines the work of reviewing incoming cases.

Only Justice John Paul Stevens has declined to participate. He relies on his own clerks to help cull perhaps 80 worthy cases from the thousands of appeals, called petitions for certiorari, that reach the court each year. The justices who participate in the arrangement, known around the court as the "cert. pool," receive a common "pool memo" on each case from a single clerk. The memo analyzes the petition and makes a recommendation about whether it should be granted.

Justice Alito has said nothing publicly about his decision to exit the pool. His move was confirmed by Kathleen Arberg, the court’s public information officer.

Students of the court say there are costs and benefits to relying on pool memos, which are prepared by smart but relatively inexperienced law clerks.

"The benefit is efficiency," said David R. Stras, a law professor at the University of Minnesota who has studied the subject and reviewed many of the pool memorandums released with Justice Harry A. Blackmun’s papers. The pool, he said, avoids the time-consuming duplication of efforts that would result from having a clerk in each justice’s chambers consider every petition.

But the pool system "does put enormous influence and power in a single clerk," Professor Stras said, adding, "I’m quite sure there are cases that fall through the cracks." Read more

Roberts and Alito, Skinnydipping in the Cert Pool
Above the Law
by David Lat
September 21, 2006

From the same Tony Mauro column that discussed Chief Justice Roberts’s new summer house comes this update on the SCOTUS cert pool:

[T]he Supreme Court’s two newest justices have decided, at least temporarily, to stick with the Court’s clerk-pooling arrangement…. [B]oth Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. said they will stay in the "cert pool," as it is called, for the current term.

    Roberts said he will participate on a "year-to-year basis," and Alito said the same….

The use of the certiorari pool does, by the way, increase the power of law clerks at the Court:

In a 1997 speech when he was in private practice, Roberts said he found the pool "disquieting" in that it made clerks "a bit too significant" in determining the Court’s docket. During his confirmation hearings in January, Alito said he was "aware of the issue" surrounding the pool. He added: "We cannot delegate our judicial responsibility. But . . . we need to find ways, and we do find ways, of obtaining assistance from clerks and staff, employees, so that we can deal with the large caseload that we have."

One could quibble with Justice Alito’s description of the SCOTUS caseload as "large." The Court hears fewer than 100 cases each Term, and the number has been decreasing over the years. And the cert pool may actually be contributing to that decline, as Lyle Denniston suggests.
But we heart Justice Alito, so we won’t quibble.

Another consequence of the pool:

In their new book on the Court’s clerks, Sorcerers’ Apprentices, authors Artemus Ward and David Weiden chart the history and impact of the pool. At the same time the pool has increased the power of clerks in the gatekeeping function, they say, it has made clerks less candid and more timid in their recommendations. "The pool writers are going to be less candid than they would be with their own justice," says Ward in an interview. "It has a chilling effect."

It would be interesting if another justice were to join Justice Stevens in declining to participate in the cert pool. But would that make a clerkship with that justice less desirable? Clerks to that justice would have to spend more of their time doing mind-numbing cert review work, getting down into the factual weeds of lower-court records — instead of working on the sexy, pure legal issues presented by merits cases.

Maybe there’s a collective action problem here. Who would be willing to go first? Read more

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