U.S. Supreme Court

Cert Pool Clerks Getting Stingier While Docket Shrinks, Study Says

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A law professor who reviewed 20,000 law clerk memos on whether to grant cert in U.S. Supreme Court cases has concluded that the so-called cert pool may well be contributing to the decline in the court’s docket.

David Stras of the University of Minnesota Law School, a former law clerk for Justice Clarence Thomas, concludes in an article for the Texas Law Review that law clerks in the pool are stingy in making grant recommendations and getting stingier over time. His study was possible because of the published papers of Justice Harry A. Blackmun, available online for review.

All the current justices, with the exception of John Paul Stevens, participate in the pool.

It was established in 1972 at the suggestion of Justice Lewis Powell. Each law clerk in the pool is assigned petitions for certiorari to review, analyze and make a recommendation on whether the court should grant review. The recommendation is circulated to each justice in the pool.

Some have theorized that 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. (The ABA Journal wrote about this subject in March.) The theory is an attempt to explain why the court is ruling in about half the number of cases decided 25 years ago.

Stras found that the percentage of recommendations for review by the cert pool decreased as more justices began to participate in the pool. In the 1984 and 1985 terms, when only six justices participated in the pool, clerks recommended review in 2.5 percent of the cases. By 1991 and 1992, eight justices participated, and the percentage of recommendations for review dropped to 1.4 percent.

At the same time, the amount of disagreement between the cert pool and the court decreased, from 1.46 percent of the cases in 1984 and 1985, to .86 percent for the 1991 and 1992 terms.

Appellate litigator Howard Bashman has also taken a look at some of the cert pool memos in an article for Law.com. He concludes from his “casual examination” what he long suspected: “The vast majority of cases on the U.S. Supreme Court’s certiorari docket are being denied because they fall far short of satisfying the objective criteria for review. The cases that are closer calls—those that might satisfy the Court’s stringent criteria for review—receive much more in-depth treatment from the law clerk assigned to prepare the pool memo.”

Stras also noted that clerks increasingly rely on objective criteria, such as a split in the circuits, possibly because they are reluctant to make subjective judgment calls about whether an issue presents an important question deserving high court review.

Bashman reports a Blackmun quirk that shows up in the cert memos: The justice circled nearly every one of the clerks’ typographical errors.

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