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As they enter their second term, the Supreme Court’s two newest justices have decided, at least temporarily, to stick with the Court’s clerk-pooling arrangement, despite concerns that it gives law clerks too much power. In brief interviews in recent weeks, both Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. said they will stay in the “cert pool,” as it is called, for the current term. Roberts said he will participate on a “year-to-year basis,” and Alito said the same; both indicated they are still weighing the issues that have been raised. But Alito said that during his first term it was apparent to him that certiorari petitions need to be read closely to determine if they are worth granting � suggesting some need for pooling the workload. The arrangement, devised in 1972, radically changed what happens when a petition for review or certiorari comes in to the Court. Instead of being reviewed separately by nine clerks and/or nine justices, it is scrutinized for the pool, presumably in greater depth, by one clerk, who then writes a memo for all the justices in the pool. The pool drew little criticism when only four or five justices participated. But ever since the late Thurgood Marshall left the Court, in 1991, Justice John Paul Stevens has been the only justice outside the pool, preferring to have his clerks take a separate look at petitions, partly as a backstop for the pool. In a 1997 speech when he was in private practice, Roberts said he found the pool “disquieting” in that it made clerks “a bit too significant” in determining the Court’s docket. During his confirmation hearings in January, Alito said he was “aware of the issue” surrounding the pool. He added: “We cannot delegate our judicial responsibility. But . . . we need to find ways, and we do find ways, of obtaining assistance from clerks and staff, employees, so that we can deal with the large caseload that we have.” In their new book on the Court’s clerks, Sorcerers’ Apprentices, authors Artemus Ward and David Weiden chart the history and impact of the pool. At the same time the pool has increased the power of clerks in the gatekeeping function, they say, it has made clerks less candid and more timid in their recommendations. “The pool writers are going to be less candid than they would be with their own justice,” says Ward in an interview. “It has a chilling effect.” The book also asserts that since the pool was created, “the number of separate concurring and dissenting opinions issued by the justices exploded.” In other words, by lightening the load of petitions each clerk has to read, the pool frees the clerks to write more opinions for their justices. By the authors’ estimate, each clerk in 1970 reviewed an average of 634 petitions, while in 2000 that number was down to 271. “This is something they know they will have to face sooner or later,” says Ward. “They may be just leaving well enough alone until Justice Stevens leaves. Then the question will be whether his successor joins the pool.”

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