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One of the earliest and most telling decisions John Roberts Jr. will confront if confirmed for a seat on 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 incoming 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 incoming cases separately from the pool. Since only about one 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. At the same time, 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 last weekend 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. Marshall’s retirement was the occasion for the internal discussion of the cert pool. 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. The result would be two memos on each case. “This suggestion would impose a slight additional burden,” Kennedy wrote, “but the benefit of an alternate form of review within the pool system may justify the extra effort.” 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.” The late Justice Harry Blackmun also wrote, “For some years now, I, too, have been concerned about the growth of the pool. … So long as there are three or four not in the pool, there was a brake against errors that might be committed by pool writers. Now John is the only nonparticipant.” Blackmun also noted that within his chambers his clerks reviewed and annotated all pool memos, providing another check on the system. The possibility of error or shading in the pool memos is not the only concern that has been expressed about the pool. Clerks for the late Justice William Brennan Jr. said he often would find review-worthy cases that had been passed over by clerks — perhaps because justices are less hesitant about recommending that review be granted than clerks tend to be. Justice John Paul Stevens said in 1998 that “risk-averse” law clerks played a role in reducing the number of cases the Court was reviewing each term, by recommending in their pool memos against high court review. “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,” says Emory University law school professor David Garrow, a critic of justices’ reliance on law clerks. Garrow says whether Roberts follows through on his 1997 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. “The creation and growth of the cert pool has reflected the justices’ willingness to hand off primary responsibility for central aspects of their jobs to their clerks,” says Garrow. If Roberts defies the trend and stays out of the pool, “he would end Stevens’ status as the lone independent, and it might also, looking to the future, begin ‘turning the ship around’ so that future justices might also choose to go it alone.”

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