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One of the earliest and most telling decisions John Roberts Jr. will confront if confirmed for the Supreme Court has nothing to do with hot-button issues like abortion. The question is whether he will join the cert pool — the arrangement whereby justices pool their law clerks to divide up and read certiorari petitions. Each case is then summarized by one of the pool clerks, and the memo is circulated among all the justices in the pool. Whether Roberts joins will be an early signal of how he plans to use his time and his clerks. The nominee has already voiced some concerns about the process. When five justices created the pool in 1972, it was viewed as a fairly harmless efficiency that ended the duplication of clerks in all nine justices’ chambers reviewing incoming cases separately. But in recent years, the pool’s popularity has led some — including some sitting justices — to view it skeptically as an arrangement that has given law clerks too much power. Every new justice in the last 25 years has joined the pool, so that Justice John Paul Stevens is now the only justice who has his own clerks review cases separately. Since only about 1 percent of the incoming petitions are accepted for review, the net result of the pool arrangement is that virtually all of the cases that come to the Supreme Court are denied review and disposed of with only one or two law clerks — and no justices — actually reading the briefs. For the cases the Court does grant, how the single pool clerk chooses to write about the petition can have a significant impact. The cert pool’s power is “a little disquieting,” said nominee Roberts in 1997, because it makes the clerks “a bit too significant” in the certiorari process. Roberts offered those cautionary words in a talk at Georgetown University Law Center that aired earlier this month on C-SPAN. Roberts, then in private practice at Hogan & Hartson, recalled that when he was a law clerk for then-associate justice William Rehnquist, only five of the nine justices were in the pool. That effectively guaranteed that errors in how a case was summarized would be caught by other clerks in other chambers. With only one justice outside the pool, Roberts said, that check was diminished. One possible remedy, Roberts said in 1997, might be to create “two parallel pools” that would in effect check each other and limit the influence of any one clerk over the handling of a case. Roberts’ comments echo concerns expressed in 1991 by several justices in an exchange of letters that was first revealed in the late Justice Thurgood Marshall’s papers released by the Library of Congress in 1993. Justice Anthony Kennedy wrote Rehnquist that Marshall’s successor “should be encouraged to participate,” but he added, “That would mean, though, that only John [Paul Stevens] would be reviewing the petitions without the use of a pool memo.” Kennedy suggested creating a “shadow” pool system; for each case, on a rotating basis, one pool clerk would be shielded from the pool memo, instead preparing his or her own separate memo. Rehnquist replied that Kennedy “points out an obvious weakness” in the cert pool system “as the number of justices who participate in it grows.” Rehnquist was noncommittal about Kennedy’s proposed solution, but he circulated Kennedy’s memo and said, “We certainly ought to be thinking along these lines.” David Garrow, an Emory University Law School professor and a critic of justices’ reliance on law clerks, says, “No matter what one thinks of the cert pool, it would be difficult to deny that it has had a measurable impact on the Court’s shrinking and now tiny docket.” Garrow says that whether Roberts follows through on his concerns and stays out of the pool will be an important test of whether he plans to do more of his own work than many current justices do.
Tony Mauro can be contacted at [email protected].

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