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Cert pool

February 16, 2024

The cert pool is a mechanism by which the Supreme Court of the United States 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 on the suggestion of Justice Lewis F. Powell Jr.[1]

Purpose and operation edit

Each year, the Supreme Court receives thousands of petitions for certiorari; in 2001 the number stood at approximately 7,500,[2] and had risen to 8,241 by October Term 2007.[3] The court will ultimately grant approximately 80 to 100 of these petitions,[a] 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.[4]

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 who chose to personally review all incoming petitions) Burger and Associate Justices Byron White, Harry Blackmun, Lewis Powell, and William Rehnquist created the cert pool.[b] Today, all justices except Justices Samuel Alito and Neil Gorsuch participate in the cert pool.[6][7][8] Alito withdrew from the pool procedure late in 2008,[6] and Gorsuch has declined to participate since joining the court in 2017.[9]

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 his or her justice to call for a response to the petition, or any justice may call for a response after the petition is circulated.[10]

It tends to fall to the Chief Justice to "maintain" the pool when its workings go awry. Rehnquist chastised clerks for a number of practices, including memos that were tardy, too long, biased, left in unsecure locations, or swapped between chambers.[11][12]

Criticisms edit

The cert pool remedies several problems, but creates others:

  • The fate of a petition may be disproportionately affected by which chambers' clerk writes the pool memo. Certain types of petitions may be more likely to succeed in the hands of more conservative or liberal clerks.[13]
  • Ken Starr, a former clerk to Warren Burger and solicitor general, has criticised the cert pool as having "unjustifiable influence" and being "unhealthily powerful", writing that "efficiency is achieved at the expense of informed judgment."[14] Starr further argued that there was a "a hydraulic pressure to say no" while writing pool memos, stating that there were more benefits to recommending denials.[15]
  • Lyle Denniston of SCOTUSblog has argued that the cert pool is partially responsible for the court's shrunken (by historical standards) docket.[16]
  • Memos prepared for an audience of nine (or however many justices participate in the pool) cannot be as candid as private communications within chambers;[15][why?] moreover, they must be written in far more general terms than may be possible in memos between a justice and their clerk.[15][why?]
  • Douglas A. Berman has argued that the cert pool results in a greater emphasis on capital cases on the court's docket due to clerks not encountering them with the same frequency in the lower courts.[17]

Notes edit

  1. ^ See Procedures of the Supreme Court of the United States § Selection of cases.
  2. ^ 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.[5]

References edit

Footnotes edit

  1. ^ Liptak, Adam (May 1, 2017). "Gorsuch, in Sign of Independence, Is Out of Supreme Court's Clerical Pool". The New York Times. Retrieved February 15, 2021.
  2. ^ Rehnquist, William H. (2001). "Remarks by Chief Justice William H. Rehnquist: Lecture at the Faculty of Law of the University of Guanajuato, Mexico". Supreme Court of the United States. Retrieved March 28, 2018. See also Booknotes, 1998-6-14 (transcript 2012-01-03 at the Wayback Machine).
  3. ^ Caperton v. Massey Coal, 556 U.S. __, __ (Roberts, C.J., dissenting) (slip op. at 11).
  4. ^ Owens & Sieja 2017, p. 172.
  5. ^ Harrow, Jason (October 24, 2006). . Archived from the original on 2007-02-12.
  6. ^ a b Liptak, Adam (September 25, 2008). "A Second Justice Opts Out of a Longtime Custom: The 'Cert. Pool'". The New York Times. Retrieved March 28, 2018.
  7. ^ Mauro, Tony (October 21, 2005). . Legal Times. Incisive Media. Archived from the original on June 2, 2009. Retrieved March 28, 2018.
  8. ^ Mauro, Tony. "The Supreme Court Cert Pool: Sotomayor Joins It, Lawyers Attack It". National Law Journal. Retrieved March 28, 2018 – via The StandDown Texas Project.
  9. ^ . Cockle Legal Briefs. May 4, 2017. Archived from the original on February 17, 2020. Retrieved July 26, 2020.
  10. ^ Thompson & Wachtell 2009, pp. 237, 241.
  11. ^ Greenhouse 2006, p. 1370.
  12. ^ Mauro, Tony (June 1, 2004). . Legal Times. ALM Properties. Archived from the original on June 4, 2004. Retrieved March 28, 2018.
  13. ^ Peñalver, Eduardo (August 2, 2005). . Supreme Court Extra. ThinkProgress. American Progress Action Fund. Archived from the original on September 14, 2007. Retrieved March 28, 2018.
  14. ^ Starr, Kenneth W. (May 17, 2006). "The Supreme Court and Its Shrinking Docket: The Ghost of William Howard Taft" (PDF). Minnesota Law Review. 90 (5): 1376–1377. Retrieved October 4, 2020.
  15. ^ a b c Liptak, Adam (September 25, 2008). "A Second Justice Opts Out of a Longtime Custom: The 'Cert. Pool'". The Times. Retrieved February 15, 2021.
  16. ^ Denniston, Lyle (October 21, 2005). . SCOTUSblog. Archived from the original on July 14, 2008. Retrieved October 30, 2008.
  17. ^ Berman, Douglas A. (August 11, 2005). "Roberts, the Cert Pool, and Sentencing Jurisprudence". Sentencing Law and Policy. Retrieved October 30, 2008.

Bibliography edit

  • Greenhouse, Linda (2006). "How Not to be Chief Justice: The Apprenticeship of William H. Rehnquist" (PDF). University of Pennsylvania Law Review. 154 (6): 1365–1372. ISSN 1942-8537. Retrieved March 28, 2018.
  • Owens, Ryan J.; Sieja, James (2017). "Agenda-Setting on the U.S. Supreme Court". In Epstein, Lee; Lindquist, Stefanie A. (eds.). The Oxford Handbook of U.S. Judicial Behavior. Oxford: Oxford University Press. doi:10.1093/oxfordhb/9780199579891.013.13. ISBN 978-0-19-957989-1.
  • Thompson, David C.; Wachtell, Melanie F. (2009). "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 University Law Review. 16 (2): 237–302. SSRN 1377522.

Further reading edit

February 16, 2024
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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 cert to the court It was instituted in 1973 as one of the institutional reforms of Chief Justice Warren E Burger on the suggestion of Justice Lewis F Powell Jr 1 Contents 1 Purpose and operation 2 Criticisms 3 Notes 4 References 4 1 Footnotes 4 2 Bibliography 5 Further readingPurpose and operation editEach year the Supreme Court receives thousands of petitions for certiorari in 2001 the number stood at approximately 7 500 2 and had risen to 8 241 by October Term 2007 3 The court will ultimately grant approximately 80 to 100 of these petitions a 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 4 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 who chose to personally review all incoming petitions Burger and Associate Justices Byron White Harry Blackmun Lewis Powell and William Rehnquist created the cert pool b Today all justices except Justices Samuel Alito and Neil Gorsuch participate in the cert pool 6 7 8 Alito withdrew from the pool procedure late in 2008 6 and Gorsuch has declined to participate since joining the court in 2017 9 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 his or her justice to call for a response to the petition or any justice may call for a response after the petition is circulated 10 It tends to fall to the Chief Justice to maintain the pool when its workings go awry Rehnquist chastised clerks for a number of practices including memos that were tardy too long biased left in unsecure locations or swapped between chambers 11 12 Criticisms editThe cert pool remedies several problems but creates others The fate of a petition may be disproportionately affected by which chambers clerk writes the pool memo Certain types of petitions may be more likely to succeed in the hands of more conservative or liberal clerks 13 Ken Starr a former clerk to Warren Burger and solicitor general has criticised the cert pool as having unjustifiable influence and being unhealthily powerful writing that efficiency is achieved at the expense of informed judgment 14 Starr further argued that there was a a hydraulic pressure to say no while writing pool memos stating that there were more benefits to recommending denials 15 Lyle Denniston of SCOTUSblog has argued that the cert pool is partially responsible for the court s shrunken by historical standards docket 16 Memos prepared for an audience of nine or however many justices participate in the pool cannot be as candid as private communications within chambers 15 why moreover they must be written in far more general terms than may be possible in memos between a justice and their clerk 15 why Douglas A Berman has argued that the cert pool results in a greater emphasis on capital cases on the court s docket due to clerks not encountering them with the same frequency in the lower courts 17 Notes edit See Procedures of the Supreme Court of the United States Selection of cases 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 5 References editFootnotes edit Liptak Adam May 1 2017 Gorsuch in Sign of Independence Is Out of Supreme Court s Clerical Pool The New York Times Retrieved February 15 2021 Rehnquist William H 2001 Remarks by Chief Justice William H Rehnquist Lecture at the Faculty of Law of the University of Guanajuato Mexico Supreme Court of the United States Retrieved March 28 2018 See also Booknotes 1998 6 14 transcript Archived 2012 01 03 at the Wayback Machine Caperton v Massey Coal 556 U S Roberts C J dissenting slip op at 11 Owens amp Sieja 2017 p 172 Harrow Jason October 24 2006 Ask the Author More on the Impact of Pauper Status Part 2 Archived from the original on 2007 02 12 a b Liptak Adam September 25 2008 A Second Justice Opts Out of a Longtime Custom The Cert Pool The New York Times Retrieved March 28 2018 Mauro Tony October 21 2005 Roberts Dips Toe into Cert Pool Legal Times Incisive Media Archived from the original on June 2 2009 Retrieved March 28 2018 Mauro Tony The Supreme Court Cert Pool Sotomayor Joins It Lawyers Attack It National Law Journal Retrieved March 28 2018 via The StandDown Texas Project Justice Gorsuch Opts Out of SCOTUS Cert Pool Cockle Legal Briefs May 4 2017 Archived from the original on February 17 2020 Retrieved July 26 2020 Thompson amp Wachtell 2009 pp 237 241 Greenhouse 2006 p 1370 Mauro Tony June 1 2004 Rehnquist s Olive Branch Too Late Legal Times ALM Properties Archived from the original on June 4 2004 Retrieved March 28 2018 Penalver Eduardo August 2 2005 Roberts Cert Pool Memos Supreme Court Extra ThinkProgress American Progress Action Fund Archived from the original on September 14 2007 Retrieved March 28 2018 Starr Kenneth W May 17 2006 The Supreme Court and Its Shrinking Docket The Ghost of William Howard Taft PDF Minnesota Law Review 90 5 1376 1377 Retrieved October 4 2020 a b c Liptak Adam September 25 2008 A Second Justice Opts Out of a Longtime Custom The Cert Pool The Times Retrieved February 15 2021 Denniston Lyle October 21 2005 Commentary The Court s Caseload SCOTUSblog Archived from the original on July 14 2008 Retrieved October 30 2008 Berman Douglas A August 11 2005 Roberts the Cert Pool and Sentencing Jurisprudence Sentencing Law and Policy Retrieved October 30 2008 Bibliography edit Greenhouse Linda 2006 How Not to be Chief Justice The Apprenticeship of William H Rehnquist PDF University of Pennsylvania Law Review 154 6 1365 1372 ISSN 1942 8537 Retrieved March 28 2018 Owens Ryan J Sieja James 2017 Agenda Setting on the U S Supreme Court In Epstein Lee Lindquist Stefanie A eds The Oxford Handbook of U S Judicial Behavior Oxford Oxford University Press doi 10 1093 oxfordhb 9780199579891 013 13 ISBN 978 0 19 957989 1 Thompson David C Wachtell Melanie F 2009 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 University Law Review 16 2 237 302 SSRN 1377522 Further reading editWard Artemus Weiden David L 2003 Sorcerers Apprentices 100 Years of Law Clerks at the United States Supreme Court New York NYU Press ISBN 978 0 8147 9404 3 Woodward Bob 1979 The Brethren Inside the Supreme Court New York Simon amp Schuster pp 329 330 ISBN 978 0 671 24110 0 Retrieved from https en wikipedia org w index php title Cert pool amp oldid 1105165196, wikipedia, wiki, book, books, library,

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