Long conference is a longer shot for cert petitions; study suggests newbie law clerks are to blame
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The statistics tell the story. Getting the U.S. Supreme Court to accept a cert petition during the “long conference” when summertime cert petitions are considered, is more difficult than during the term that lasts from October to June.
During the term, the justices grant about 1.1 percent of cert petitions, compared to 0.6 percent in the long conference, scheduled for Sept. 28 this year. A new study has found that newbie law clerks may be to blame, the New York Times reports in a Sidebar column.
The study found that Supreme Court law clerks, who begin work in July, are 36 percent less likely to recommend a cert grant when they are new to their jobs. Each clerk reviews a batch of petitions and makes recommendations to the eight justices who participate in the “cert pool.” (Only Justice Samuel A. Alito Jr. doesn’t participate in the pool.) When the clerks are reviewing petitions for the long conference, they are new to their posts.
The study looked at a sample of about 1,200 cases from the 1987 to the 1993 October terms.
Clerks may be cautious because they want to avoid damage to their reputation if they recommend the justices accept a case that turns out to lack certworthy characteristics, the study says. Justice John Paul Stevens explained the phenomenon in a 1998 interview. “You stick your neck out as a clerk when you recommend to grant a case,” Stevens said. “The risk-averse thing to do is to recommend not to take a case.”
One of the study authors is Shon Hopwood, a teaching fellow at Georgetown University Law Center who went to law school after serving time in prison for bank robbery. While in prison, he wrote a winning cert petition for a fellow inmate. Other authors are University of Maryland political scientist William Blake and Arkansas State University political scientist Hans Hacker.
