Howard J. Bashman
Related: Bashman Archive
Each year, a small crop of highly credentialed recent law school graduates arrives at the U.S. Supreme Court to serve as law clerks for the nine justices. One significant duty that these clerks perform is analyzing whether petitions for writ of certiorari -- written arguments asking the Court to accept a case for review on the merits -- are meritorious and should be granted.
Eight of the nine current justices -- everyone other than John Paul Stevens -- participate in what is known colloquially as the "cert pool." The law clerks for those eight justices are each randomly assigned cert petitions which they analyze and evaluate in a memorandum that describes what the case is about, what the arguments are for and against review, and what action the law clerk recommends the Court take on the request for review on the merits. A particular law clerk's cert pool memo is distributed not only to the law clerk's own Justice but also to the other seven Justices who participate in the pooling arrangement.
Over the years, I have heard various criticisms of the cert pool arrangement that essentially boil down to the thought that it places too much power into the hands of a single recent law school graduate who may have no pre-existing familiarity with the complex subject matter of a given area of law that a case involves. A related criticism is that the cert pool process contains a built-in bias in favor of denying review. The theory goes that no law clerk has ever appeared foolish for recommending a denial of review, while many have appeared foolish by recommending a grant of review in cases that are later discovered to be unsuitable vehicles for deciding the questions that appeared to have been presented. In addition, the eight justices who participate in the cert pool frequently have widely divergent views on the merits of cases, so one might wonder: How can a lone law clerk adequately serve as a proxy for whether those eight individuals will find an issue or case deserving of review?
Fortunately, thanks to the Internet, the debate over whether the cert pool is a useful development -- or, instead, something that should be abandoned -- no longer needs to be conducted in the abstract, without the ability to marshal relevant evidence. Although the pool memoranda that the U.S. Supreme Court's law clerks write are treated by the court as confidential documents that hardly ever see the light of day, the papers of Justice Harry A. Blackmun contain a treasure trove of these memoranda. And now the memos from the Court's 1986 through 1993 terms are freely available online for all to access and review.
I have not conducted a comprehensive review of those pool memos, but my casual examination confirms what I have long suspected: The vast majority of cases on the U.S. Supreme Court's certiorari docket are being denied because they fall far short of satisfying the objective criteria for review. The cases that are closer calls -- those that might satisfy the Court's stringent criteria for review -- receive much more in-depth treatment from the law clerk assigned to prepare the pool memo.
I was also impressed with the fact that, in Blackmun's chambers, it was clear that each pool memo written by a law clerk from another chamber was first examined by one of Blackmun's law clerks to see whether that law clerk agreed with the memo's analysis and recommendation. The Blackmun papers also reflect that Blackmun himself reviewed the pool memos very carefully, with an eye toward reaching his own independent decision on whether or not a given case should be granted review.
Fellow law geeks may also find this online repository of cert pool memos interesting for another reason. Among the authors of these memos are individuals who have gone on to become highly acclaimed law professors, federal and state judges, high-ranking attorneys in government service, and leading appellate advocates in private practice. And in his review of their cert pool memos, Blackmun has circled nearly every one of their typographical errors.
CONCLUSION
Seeing recent examples of the U.S. Supreme Court's cert pool process in action might not eliminate or even diminish every complaint that critics of the current system have raised, but it has certainly confirmed my expectation that the process is being performed in good faith, with the goal of enabling the justices to identify those cases that are most deserving of review. The final stage of the process, where the justices meet in private to decide on their own which cases to select, remains largely shrouded in secrecy, so we may never know why some cases that objectively appear to qualify for U.S. Supreme Court review don't receive it.
Thanks to the professors who have put the cert pool memo archive online, we can now take a peek behind the curtain at the U.S. Supreme Court's case selection process as it operated in the fairly recent past. I found the resource to be fascinating, and if you take a look yourself, you might just find that you agree.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
