Alito Opts Out of the Supreme Court Cert Pool
A second Supreme Court justice is opting out of the cert pool, made up of law clerks who review cert petitions and recommend whether they should be granted.
The court’s newest justice, Samuel A. Alito Jr., has decided not to participate, joining the court’s most senior justice, John Paul Stevens, the New York Times reports.
The cert pool has been criticized as a possible factor contributing to the court’s shrinking docket. Some theorize the law clerks have a bias against granting cert so they won’t appear foolish if the case is later dismissed as improvidently granted, otherwise known as a DIG.
Critics also say the pool concentrates a lot of power in the hands of inexperienced law clerks. Each clerk in the pool is assigned cert petitions to review, analyze and make a recommendation on whether the court should grant review. The recommendation is circulated to each justice in the pool.
Legal Times says the move may give Alito more clout in deciding which cases reach the court. Currently the chief justice decides which cases should be placed on a list for cert discussion, and the other justices make additions by descending level of seniority. “By the time it gets down to the lowest in seniority, the conversation is essentially over,” the story says.