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One year after joining the nation’s highest court, Supreme Court Justice Samuel Alito, Jr. said he finally knows his way around the Supreme Court building. But he is still perplexed by something else: why the court is deciding so few cases. “It’s a real mystery to me,” Alito said in an exclusive interview with Legal Timesmarking his first anniversary on the court Jan. 31. Speaking on a wide range of court topics, the newest justice also said: � Despite pressure from Congress and elsewhere, the consensus among his colleagues persists that allowing cameras into the Supreme Court is a “a bad idea.” � He agrees with the Chief Justice John Roberts Jr.’s oft-stated goal of achieving greater unanimity, but not to the point of “endorsing something you don’t believe in.” � After earlier doubts about the law clerk-pooling arrangement, he intends to remain in the pool for the long term. � Supreme Court advocacy is “considerably better” than it was 25 years ago when he observed arguments as an assistant to the solicitor general. “It’s hard to believe a whole year has gone by,” Alito said in the Feb. 2 telephone interview. “I’m enjoying the job; it’s very satisfying.” Not so much when he began, though. Alito replaced then-Justice Sandra Day O’Connor at midterm last year, when the decision-writing was already under way. “It was difficult to start in the middle of the term. It took me a while even to find my way around the court.” But now, Alito describes himself as “much more comfortable, much more natural” in his new position. All his colleagues welcomed him warmly and offered assistance, he said. “I couldn’t have asked for better treatment.” Still, his year in the spotlight has been a culture shock for the unassuming Alito, who recalls that in his prior judgeship on the 3rd U.S. Circuit Court of Appeals, “I could go for weeks without seeing anyone other than my secretary and my clerks before going down in the garage every night and driving home.” His chambers were in Newark, N.J., and the court sat in Philadelphia. That kind of isolation is gone. Now Alito is a sought-after speaker, and when he enters a roomful of lawyers, all heads turn. Last month, he still seemed awed by watching the State of the Union address from a front-row seat. “Some of that has felt very strange � like an out-of-body experience,” Alito said. But Alito has gotten into the rhythm and work of the court, which he said is “not all that different” from what he did on the appeals court. Docket Watch Alito, like many other court-watchers, has a hard time explaining why the court is taking and deciding so few cases. With the announcement Monday of the court’s April argument calendar, it appears that the court will end the term issuing fewer than 75 signed opinions, around the same number for the last several terms � and about half the number it was deciding 20 years ago. But like Roberts, Alito thinks it is not a matter of the court passing up significant issues that desperately need resolving. Day in and day out, Alito said he is not bowled over by the petitions for certiorari that he sees. “Applying the usual criteria, I just haven’t seen many cases denied that really were good candidates for review.” Alito continues, “If I had the time, I’d like to take a term where they were taking the [150-plus] cases and see whether they are cases that we would grant today. But I don’t have the time.” Are Supreme Court advocates falling down on the job or overplaying purported splits among the courts of appeals? Alito said advocates are not doing anything wrong. “I’m very impressed with the quality of the briefing and advocacy,” he said. “I think it’s considerably better than what I saw 20 years ago or so,” a reference to when he served in the solicitor general’s office from 1981 to 1985. There is one theory about the shrinking docket that Alito rejects completely. Some, including Justice John Paul Stevens, have linked the decrease in the docket to the increased influence law clerks have in screening incoming cases because of the so-called cert pool. With eight of the nine justices � all but Stevens � pooling their clerks for the scrutiny of incoming cases, one clerk ends up summarizing each petition for eight justices. Since clerks are risk-averse by nature, under this theory they have a greater incentive to recommend against granting review, rather than risk urging the court to take a case that could turn out to be flawed or poorly presented. Over time, the theory goes, this dynamic has resulted in the court granting review in fewer cases. “I don’t think the cert pool is responsible,” Alito said flatly. The clerks make recommendations about what to do with each case, he explains, but the justices decide. “There are plenty of cases where the clerks recommend a grant, and we deny, and plenty where they recommend we deny, and we grant.” The pool memos written by individual clerks, Alito said, “convey a way of identifying good candidates for us taking a closer look.” On the overall subject of the clerk pool, Alito has set aside earlier concerns about whether it gave clerks too much power, and now said “my intention is to stay in it. I’m pretty pleased with it.” He added, “It’s not perfect, but with the number of petitions we get, it is very valuable.” The court last term received 8,521 petitions, 80 percent of which were on the unpaid docket, filed by prisoners and other indigent parties. Some petitions are easy to identify as cases that should be rejected, and others are clear grants, Alito said. “But when you have a petition that said there is a conflict between these three circuits and four other circuits over this point, someone has to read all those opinions.” That is where the cert pool has proven its worth, Alito said. Candid on Cameras On the issue of cameras in the courts, Alito said he still believes what he said during his confirmation hearing and elsewhere: that camera access would educate the public. Alito voted in favor of allowing cameras to broadcast hearings of the 3rd Circuit, but was unsuccessful. Under current rules, individual circuits have the authority to allow cameras, but only the 2nd and 9th circuits have OK’d cameras. But Alito said he is deferential toward his new colleagues who say the Supreme Court is different and cameras there would be a “bad thing.” One reason he is not pressing the point is that the court has taken several steps short of cameras that have improved public access, including the quick posting of all oral argument transcripts, as well as the release of audiotapes in high-profile cases. “It’s a public institution, and it’s good for people to understand what we do,” Alito said. Asked about the recent trend of justices ranging from Roberts to Stevens giving interviews and making TV appearances, Alito laughed that it was a matter of individual preference, not that Roberts or anyone else has told the justices to get out more. “There are a lot of public events where it’s good for justices to participate,” Alito said. Within the last two weeks, Alito spoke before a Florida bar group, presided over a moot court competition at George Washington University, and attended a D.C. book party. Alito also commented on Roberts’ efforts to achieve greater unanimity on the court, even at the expense of making broad rulings. Alito thinks there is merit in the idea, and said Roberts has already “worked to prevent fractured opinions.” But Alito said Roberts has not made the pitch for unanimity to the justices as a group. For his part, Alito said, “I don’t feel too strongly about writing separate opinions.” But he said Roberts’ campaign points up a problem that any appellate judge “struggles with,” namely, how far to go in compromising in the interest of unanimity and giving clear guidance, without crossing the line into endorsing “something you don’t believe in.” Alito recalled that in his early days as a judge on the 3rd Circuit, he heard a judge � whose name he can’t recall � lecture on the evils of writing dissents. “He said it was nothing but vanity, and that it didn’t achieve anything. That’s one side of it.” The other side, which Alito worries about, is the dishonesty of signing onto an opinion with which you disagree. “I think of the analogy of someone coming to your door and asking you to sign a petition,” said Alito. “You say no, you don’t agree with it, and the person at your door said, �Sign it anyway.’” Justices Antonin Scalia and Stephen Breyer have voiced other reservations about Roberts’ push toward unanimity. With Alito, a natural ally of Roberts, also wondering aloud about the danger of going too far, Roberts may have a harder time achieving his goal than he might have expected.

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