Cert pool
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The Cert pool is a mechanism by which the Supreme Court of the United States manages the influx of petitions for certiorari to the Court. It was instituted in 1973, at the suggestion of Justice Lewis Powell, as one of Chief Justice Warren Burger's institutional reforms.
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[edit] Purpose and operation
Each year, the Supreme Court receives approximately 7500 petitions for certiorari. The Court will ultimately grant approximately 80 to 100 of these petitions, in accordance with the rule of four. However, the Supreme Court's workload renders it impractical 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.
In Powell's and Burger's view, particularly in light of the increasing caseload, it was redundant to have nine separate memoranda prepared for each petition and thus, despite objections from Justice William Brennan, Burger and Associate Justices Byron White, Harry Blackmun, Lewis Powell, and William Rehnquist began pooling their clerks. Eight of the nine current Justices participate in the cert pool, the exception being Justice John Paul Stevens.
Under the cert pool, a copy of each petition received by the Court goes to the pool, is assigned to a random clerk in the pool, and that clerk then prepares a memo for all of the Justices participating in the pool.
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.'"
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.’"
[edit] Problems
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 be 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."
- Prof. Douglas A. Berman has argued that the cert pool substantially weights the preponderance of capital cases on the court's docket.
- Lyle Denniston of SCOTUSblog has argued that the cert pool is partially responsible for the Court's shrunken (by historical standards) docket.
[edit] Further reading
R. Woodward, The Brethren, pp. 329-30.
[edit] Footnotes
- ↑ Chief Justice William H. Rehnquist, Remarks at University of Guanajuato, Mexico, 9/27/01; see also, Booknotes, 6/14/98 (transcript).
- ↑ See Supreme Court procedures.
- ↑ It is possible that Burger took inspiration for the cert pool from the manner in which the Court had been handling in forma pauperis petititions. 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. [8]
- ↑ Justice Stevens does not participate; the Court's most recent members - Chief Justice Roberts and Justice Alito - are currently participating. T. Mauro, Roberts Dips Toe Into Cert Pool, Law.com, 10/21/05; T. Mauro, Justice Alito Joins Cert Pool Party, 4/7/06.
- ↑ T. Mauro, Rehnquist's Olive Branch Too Late?, Law.com, 6/1/2004
- ↑ L. Greenhouse, How not to be Chief Justice, 154 U. Penn. L. Rev 1365 at 1370
- ↑ Eduardo Penalver (Clerk to Justice Stevens, OT 2000, thus working at the Supreme Court during a term where the pool operated, but for a chambers not participating in the pool), Roberts’ Cert Pool Memos; Think Progress, 8/2/05
