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The Supreme Court’s two newest justices have decided to remain in the Court’s so-called “cert pool,” leaving Justice Samuel Alito Jr. as the only justice whose law clerks screen incoming cases for just one member of the Court. In response to questions from Supreme Court Insider, justices Elena Kagan and Sonia Sotomayor said they would participate in the pool at least through the next term of the Court. They did not elaborate on their decisions. Under the cert pool arrangement, which has been in place for nearly 40 years, participating justices divide up the thousands of incoming petitions for certiorari among their pooled clerks. As a result, only one clerk reviews, summarizes and recommends for or against certiorari of a given case for all the justices in the pool. Created to avoid duplication, the cert pool has been criticized for giving individual law clerks too much power over the Court’s gatekeeping function. Research has shown a strong correlation between the pool clerks’ recommendation about a case and the Court’s ultimate decision to grant or deny the case. Practitioners grumble about the pool because they have to explain to unhappy clients that the petitions they paid so dearly for were rejected after being reviewed by only one or two relatively inexperienced law clerks. Skeptics also blame the pool in part for the sharp decline in the number of cases the Court reviews, on the theory that clerks tend to be risk-averse and recommend against granting cert in cases that might otherwise merit review. That concern was expressed by now-retired Justice John Paul Stevens, who never joined the pool and for many years was the only justice not participating. Justice Alito joined Stevens outside the pool in 2008, two years after his nomination to the Court. Both Sotomayor and Kagan indicated that they, like Alito, would decide whether to remain in the pool after some period of time seeing how it worked. With Stevens’ retirement last year, some were hoping that Kagan, his successor, or another liberal would leave the pool to offset Alito. “It would be ideal if someone other than Justice Alito was outside the pool,” said Columbia Law School professor Jamal Greene, a former Stevens clerk. “That’s not to say anything bad about Justice Alito, but there should be a balance ideologically.” Elaborating, Greene said that just as an Alito clerk might be on the lookout for a takings case that the pool clerks might have given short shrift to, a clerk for a liberal justice might give more attention to a capital case that a pool clerk might have viewed as unworthy of certiorari. Chicago-Kent College of Law professor Carolyn Shapiro, a former Stephen Breyer clerk, said criticisms of the cert pool should be leveled instead at the criteria the Court uses for granting certiorari. “The pool clerks take their responsibilities quite seriously, and there are checks and balances” aimed at not missing cert-worthy cases, she said. But still, she agreed that another pair of eyes could be useful in finding more cases for the Court to review. Echoing the “timid law clerk” theory, Shapiro said, “The culture in the cert pool is that there is no risk in recommending denial.” Todd Peppers, author of the 2006 book Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, said he was not surprised by Kagan’s decision. “Especially with a new justice who was not a judge before, the overwhelming amount of work makes the cert pool a no-brainer.” Tony Mauro can be contacted at [email protected].

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