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The Supreme Court Cert Pool: Sotomayor Joins It, Lawyers Attack It
The National Law Journal
September 22, 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 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.
Sotomayor said at her confirmation hearing that she wanted to "experience the process for awhile" before deciding what to do for the long term.
The cert pool came under considerable criticism on Friday at a conference on the Supreme Court's case selection process, sponsored by the Yale Law School Supreme Court Advocacy Clinic and the Yale Law Journal Online. One of the aims of the discussion was to weigh different theories for why the Court's docket of argued cases had been cut in half, more or less, in the last 20 years -- from 150 or more to 75 or so.
One prominent theory has to do with the cert pool, and it might be labeled the "timid law clerk" syndrome. Espoused by Justice Stevens and many academics and practitioners, it goes like this: Law clerks are risk-averse, dreading the prospect of recommending review in a case that turns out to be a flawed vehicle that wastes justices' time. As a result, the clerks are far more likely to recommend against granting review, even in cases that deserve review. The clerks' recommendations have had growing influence over the case selection process as the pool has grown in size, thereby contributing to the decrease in accepted cases. Some justices routinely dismiss the theory -- as Alito did in this 2007 interview -- because, they say, they often don't follow the clerks' recommendations. But the theory persists, as Friday's conference indicated.
"The theory of the pool is that it is never wrong to deny [a petition] because the issue will come up again," said Roy Englert of Robbins, Russell, Englert, Orseck, Untereiner & Sauber. As a result, Englert said, important cases that merit review are "falling through the cracks ... The pool is not serving the Court very well." He cited research by University of Minnesota professor David Stras -- who also spoke at the conference -- showing that there is a strong correlation between the recommendations of pool clerks and whether the Court grants or denies a case.
Sidley Austin's Carter Phillips concurred, acknowledging frustration with the fact that because of the pool, many of the petitions he writes are not read by any justice -- a truth that is difficult to explain to a paying client after the petition has been denied. "I am writing petitions for people the age of my daughter," Phillips said -- a comment that had some literal truth for him. Phillips' daughter Jessica clerked for Justice Alito two terms ago (but was recused in any cases involving Sidley Austin).
Former solicitor general Seth Waxman also weighed in, freely acknowledging that "almost all the cases I get paid to file are denied." The partner at Wilmer Cutler Pickering Hale & Dorr agreed that clerks have little incentive to recommend that the Court grant review. "The only way a clerk can become truly notorious," Waxman said, is to recommend review in a case that the justices later dismiss because it has a procedural flaw or other defect. Like others, Waxman suggested creation of two cert pools as a check on each other, though in Waxman's version, one pool would recommend review and the other would recommend against.
Mayer Brown partner Andrew Pincus, co-director of the Yale clinic that hosted the conference, offered another idea: a two-step screening process. In the first step, a grouping of 300 or so petitions that merit further consideration out of the roughly 2,000 paid and 7,000 unpaid petitions filed annually would be created, and then in the second step, that smaller number of petitions would get more extensive scrutiny by the clerks and the justices than the cases that obviously merit denial. More on Friday's conference in future posts.
This article first appeared on The BLT: The Blog of Legal Times.
