Last year, 180 of the Nation’s most influential people lined up on the steps of the Supreme Court of the United States – and you probably don’t know any of them. They lined up for the memorial service for Justice Antonin Scalia. These are clerks to the Justices of the Supreme Court, and that service generally establishes them to a lifetime career at the highest levels of the legal profession.
It also affects almost all jurisprudence in the U.S. Through a device known as the cert pool, the Supreme Court clerks control the fate of the most contentious and important cases facing the Supreme Court.
Each Justice can hire up to four clerks, usually the best and brightest of those clerking before the U.S. Courts of Appeal. The Supreme Court receives 7,000 petitions for certiorari each year, and grants, in recent years, about 75. The flow of petitions comes in huge waves with the daily deliveries to the clerks for each Justice.
In 1973, Chief Justice Warren Burger and Justice Lewis Powell established the cert pool agreement to spread the load between offices. Since 2010, all sitting Justices participated in the pool, except Justice Samuel Alito. All incoming petitions are randomly divided to members of the pool, so a single clerk reviews a petition and writes a memo summarizing the petition for all the Justice’s offices. If a petition doesn’t catch that clerk’s eye, it likely won’t get cert. You can see the problem there; perfectly good cases can be deemed not cert-worthy by one young person’s review.
The title of this post comes from a law review article by Ken Starr, a former Supreme Court clerk, U.S. Court of Appeals judge, Solicitor General of the U.S., and dean of two universities. “The prevailing ethos is that no harm can flow from ‘just saying no.’ Self-confident law clerks can rest assured that few, if any, recriminations will attend their providing guidance to the Court to deny certiorari.” 90 Minn.L.Rev. 1363, 1376 (2006).
Although all Justices purport to thoroughly review all clerks’ memos, only Justice Alito didn’t get the pool memos; even then, Justice Alito relied on his four clerks to review 7,000 petitions. Still, that’s at least two sets of eyes on the petition flow.
Today’s New York Times reports that new Justice Neil Gorsuch has now opted out of the cert pool as well. The reporter, Adam Liptak, has followed the cert pool for many years. So now that’s three sets of eyes on the petitions.