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Chief Justice John Roberts Jr. has decided, at least for now, to join the so-called cert pool, the group of justices whose law clerks divvy up incoming petitions for certiorari to produce a single memo about each case. In one of his first major decisions about how he will operate as chief justice, Roberts said through the Court public information office last week that he would participate for at least his first year. That qualifier went unexplained but suggests that once Roberts gets settled in, he may take another look. With eight justices — all except John Paul Stevens — participating, the pool has been criticized for giving clerks too much power to determine the fate of cases. Roberts himself said in a 1997 speech that he found the pool “a little disquieting,” and suggested creating “parallel pools” so that each petition would be read by at least two clerks. But Roberts has opted to go with the flow for now. The pool was already operating by the time he arrived, with his predecessor William Rehnquist’s clerks participating. Three Rehnquist clerks have stayed on with Roberts — Mark Mosier, Ann O’Connell, and Michael Passaportis — joined by Dan Kearney and Kosta Stojilkovic, two of Roberts’ D.C. Circuit clerks last term. Veteran high court advocate Carter Phillips, a partner at Sidley Austin Brown & Wood in Washington who is also a critic of the cert pool, says Roberts’ move does not rule out future reforms. “I know he has misgivings about the pool, and it will be easier to recommend changes after he has some experience with it from the inside.”
Tony Mauro can be contacted at [email protected].

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