Supreme Court Report

Clerks Avoid Getting Their DIGs In

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Anup Malani doesn’t recall which clerk wrote the memo six years ago suggesting that the U.S. Supreme Court grant certiorari to an affirmative action case.

But Malani, who was clerking for Justice Sandra Day O’Connor, remembers the result. After full briefing and oral argument, the court dismissed the case as improvidently granted, otherwise known as a DIG.

The case, Adarand Constructors Inc. v. Mineta, 534 U.S. 103 (2001), involved a challenge to the U.S. Depart­ment of Transportation’s affirmative action program for federally funded contracts. The Supreme Court said the petitioner had failed to challenge an appeals court ruling that denied standing.

Luckily, the justices and other clerks probably didn’t know the identity of the memo’s author either, says Malani, now a law professor at the University of Chicago. But, he says, he assumed the author was embarrassed.

“For one thing, the court seems unprofessional when it admits a mistake,” Malani says. “If I were that person that recommended something that got DIGed, I would have forced the court to look bad.”

In Deep Water

Forcing the court to look bad is not something that clerks want to do. And avoiding a DIG ruling is among the advice clerks pass on each summer as their replacements take their seats in the cert pool, a cooperative in which clerks for eight of the nine justices review the thousands of petitions asking for a hearing.

“You want to avoid getting DIGs because it hurts,” says University of Virginia law professor Stephen F. Smith, who clerked for Justice Clarence Thomas in 1993. “You want the most powerful justices in the country to think well of you.”

It’s better, some former clerks say, to be seen as someone who rarely, if ever, recommends that cert pe­titions be granted. That, coupled with clerks’ lack of practice experience and the fact that all the justices except John Paul Stevens participate in the cert pool, could be one of the key reasons for the decline in the number of petitions granted—and the consequent shrinking of the Supreme Court’s case docket, according to a number of legal scholars.

“I’m convinced that when each of the justices had his or her clerks read the cert petitions, you had nine sets of eyes,” says law professor Erwin Chemerinsky of Duke University.

“Now you only have one set of eyes, and that really decreases the likelihood of cert being granted,” he adds. “Also, it used to be that clerks knew what their justices wanted and what they might be interested in. You really lose that when you have the cert pool.”

University of Minnesota law professor David R. Stras may be the first with numbers to back this up. In an article slated to be published this month in the Texas Law Review, Stras examined the papers of Justice Harry A. Blackmun, reviewing every cert pool memo from the 1984, 1985, 1991 and 1992 terms.

“One of the things that the data did show was that consistently from term to term, the cert pool is stingier in the number of grants it recommends than the court itself,” Stras says. “The court ends up taking more cases than the cert pool recommends.”

The article, “The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process,” sup­ports the theory that cert pool memos influence how many cases are accepted for review.

“This explanation has considerable facial plausibil­i­ty as some justices, including the late Chief Justice [Wil­liam H.] Rehnquist, have admitted that they do not look at every petition for certiorari that is filed with the court,” Stras writes.

Stras says that during the 1984 and 1985 terms, the cert pool recommended that the court grant certiorari in approximately 2.5 percent of the cases. In the 1991 and 1992 terms, the recommendations to grant cert had dropped to 1.4 percent.

“Accordingly, the pool is not only stingy compared to the total number of cases in which the court granted certiorari, but its stinginess has increased over time,” Stras says. In the 1984 and 1985 terms, respectively, 107 and 111 grant recommendations were made, compared with 86 and 83 in the 1991 and 1992 terms, Stras finds. What’s more, the approximate number of denials rose from 3,864 and 3,815 in ’84 and ’85 to 5,412 and 5,882 in ’91 and ’92.

Between those sets of terms, the Supreme Court’s docket dropped from 151 and 159 opinions (’84 and ’85) to 116 and 114 (’91 and ’92).

Stras, who clerked for Thomas in 2002, says many Supreme Court clerks are more comfortable recommending denial of a cert petition. “Really, it’s sort of the safer play to recommend a deny because you’re less often proved wrong.”

Other former clerks agree. Even if a memo recommends that cert be denied and the justices instead de­cide to grant it, they say, it’s less embarrassing than being seen as someone who recommends grants too often.

And there’s the notion that finding a reason to deny cert showcases a clerk’s legal skills. “It’s kind of cool to be the clerk who identifies the problem. If you’re the one who finds the technicality, that means you’re a real lawyer,” Malani says. The justices, he adds, usually take note of which clerk wrote the memo, and clerks develop reputations.

“Some are on the spot at figuring out what the court wants,” says Malani, who adds that others are seen as “grant happy,” and some develop reputations for being too wordy in their writing.

Smith remembers writing a cert pool memo rec­om­mending a grant. Later, one of the parties died. “Some­one said, ‘These darned law clerks, not checking on the health of the petitioners,’ ” he recalls.

During Smith’s tenure, a colleague who was seen as more academically minded recommended many grants. Others rarely recommended cert, Smith says, and when they did everyone took notice.

“You’re really putting your neck out on the line,” he says. “And what if the court disagrees with you? The incentive in the cert pool is to deny.”

Pride and Prejudice

Smith adds that another clerk developed a reputation for not being careful or forthcoming in cert pool memos. As a result, many justices would ask their own clerks for additional review.

Smith recalls that the court agreed to hear three appeals he recommended. “I was viewed as being more indulgent. I think clerks there actually did pride themselves on having never recommended review.”

No one interviewed for this piece thought that getting a DIG would tarnish a clerk’s reputation in the long term, given the prestige of a Supreme Court clerkship. Indeed, few interviewed remembered which clerk wrote the cert pool memos for any DIGs.

“Your justice will remember you, but not for how many grants you recommended. The other justices will not re­member at all whether you recommended a DIG,” Stras says. “You sort of have this idea of self-importance that goes away after you’re done.“

In his article, Stras raises the question of whether hiring more experienced clerks, or a group of staff lawyers whose sole responsibility is reviewing cert petitions, would benefit the process, particularly for parties whose cases focus on specialized legal areas such as tax law.

“I do tend to think that the appeals falling through the cracks are things the clerks are less interested in,” he says.

Others say clerks’ lack of legal experience and reluctance to recommend grants doesn’t cause a problem.

“My opinion is that if you are a good lawyer, you should be able to explain your case so well that an informed attorney can understand why your case is special and why your case ought to get space on the docket,” Smith says.

“A good lawyer will write a question that jumps off the page and makes it clear why the case is important.”

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