Cert pool

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The "cert. pool" is a mechanism by which the U.S. Supreme Court manages the influx of petitions for certiorari 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]

Further reading

• Bob Woodward. (1979) The Brethren, pp. 329–30. ISBN 0671241109

Footnotes

1. ^ Chief Justice William H. Rehnquist, Remarks at University of Guanajuato, Mexico, 2001-9-27; see also, Booknotes, 1998-6-14 (transcript).
2. ^ Caperton v. Massey Coal, 556 U.S. __, __ (Roberts, C.J., dissenting) (slip op. at 11).
3. ^ See Procedures of the Supreme Court of the United States#Selection of cases.
4. ^ 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. [13]
5. ^ Justices Stevens and Alito do not participate; the Court's most recent member, Justice Sotomayor, is currently participating. A. Liptak, [14], New York Times, 09/25/08; T. Mauro, Roberts Dips Toe Into Cert Pool, Law.com, 2005-10-21; T. Mauro via The Standdown Texas Project [15], The Standdown Texas Project, 2009-09-22.
6. ^ Liptak, Adam (2008-09-25). "A Second Justice Opts Out of a Longtime Custom: The ‘Cert. Pool’". The New York Times. http://www.nytimes.com/2008/09/26/washington/26memo.html?ex=1380168000&en=d58acbfb583fd4f2&ei=5124&partner=permalink&exprod=permalink. Retrieved 2008-09-29. 
7. ^ Thompson, David C.; Wachtell, Melanie F. (2009), "An Empirical Analysis of Supreme Court Certiorari Petition Procedures", George Mason University Law Review 16 (2): 237, 241, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1377522, retrieved 2009-04-07 
8. ^ T. Mauro, Rehnquist's Olive Branch Too Late?, Law.com, 6/1/2004
9. ^ L. Greenhouse, How Not to be Chief Justice, 154 U. Penn. L. Rev 1365 at 1370
10. ^ 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, 2005-8-2.
11. ^ Berman, Douglas A. (2005-08-11). "Commentary: The Court's caseload". Sentencing Law and Policy. Archived from the original on 2008-07-14. http://web.archive.org/web/20080714030146/http://www.scotusblog.com/wp/commentary-the-courts-caseload/. Retrieved 2008-10-30. 
12. ^ Denniston, Lyle (2005-10-21). "Roberts, the cert pool, and sentencing jurisprudence". SCOTUSblog. http://sentencing.typepad.com/sentencing_law_and_policy/2005/08/roberts_the_cer.html. Retrieved 2008-10-30.