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Chief Justice John Roberts Jr. has decided to jump in the pool — at least for now. That’s 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 a justice, Roberts, when asked about the pool this week said through the Court public information office that he was joining it for at least his first year. That qualifier went unexplained, but it at least suggests the possibility that once Roberts gets settled in, he will take another look. With eight justices — all except John Paul Stevens — participating, the pool has come in for criticism for giving individual clerks too much power to determine the fate of cases. Even Stevens does not read all the incoming petitions, which means that most are never seen by any justice. Back when Roberts was a practitioner who had to explain to clients why clerks were the only ones reading his work product, Roberts himself said in a speech that he found the pool “a little disquieting.” So when he took the reins of the Court Oct. 3, it seemed possible that Roberts might stay out of the pool or, as he suggested in 1997, create “parallel pools” so that each petition would be looked at by at least two pool clerks. But Roberts opted instead to go with the flow for now. The pooling arrangement for this term was already well underway by the time he arrived, with his predecessor William Rehnquist’s clerks participating. Three of Rehnquist’s 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 from last term. “This is a major issue for the Court, whether they will put more checks in place” on the pool system, said Northern Illinois University political science professor Artemus Ward, author of a book on Supreme Court law clerks due out next year. The need is especially great, Ward said, if Stevens, the last holdout, departs in the next few years. “I am not surprised that the chief justice joined the pool,” said veteran advocate Carter Phillips, a partner at Sidley Austin Brown & Wood in D.C., who is also a critic of the cert pool. “He was arriving just as the term began and that’s the easiest way to get integrated into the business of the Court. 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.”

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