Cert pool
Encyclopedia
The "cert. pool" is a mechanism by which the U.S. Supreme Court
manages the influx of petitions
for certiorari
to the court. It was instituted in 1973, as one of the institutional reforms of Chief Justice
Warren E. Burger
.
. The workload of the court would make it difficult for each Justice to read each petition; instead, in days gone by, each Justice's law clerk
s would read the petitions and surrounding materials, and provide a short summary of the case, including a recommendation as to whether the Justice should vote to hear the case.
This situation changed in the early 1970s, at the instigation of Chief Justice Warren E. Burger. In Burger's view, particularly in light of the increasing caseload, it was redundant to have nine separate memoranda prepared for each petition and thus (over objections from Justice William Brennan
) Burger and Associate Justices Lewis Powell, Byron White
, Harry Blackmun
and William Rehnquist
created the cert pool. Today, all Justices except Justice Samuel Alito
participate in the cert pool. Justice Alito withdrew from the pool procedure late in 2008.
The operation of the cert pool is as follows: Each participating Justice places his or her clerks in the pool. A copy of each petition received by the Court goes to the pool, is assigned to a random clerk from the pool, and that clerk then prepares and circulates a memo for all of the Justices participating in the pool. The writing law clerk may ask their Justice to call for a response to the petition, or any Justice may call for a response after the petition is circulated.
It tends to fall to the Chief Justice
to "maintain" the pool when its workings go awry:
The same note went on to observe, with typical Rehnquist understatement, that "[t]his sort of trade has the potential for undermining the policy of random assignment of memos, and is, to put it mildly, 'not favored.'"
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
manages the influx of petitions
Pleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion...
for certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
to the court. It was instituted in 1973, as one of the institutional reforms of Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Warren E. Burger
Warren E. Burger
Warren Earl Burger was the 15th Chief Justice of the United States from 1969 to 1986. Although Burger had conservative leanings, the U.S...
.
Purpose and operation
Each year, the Supreme Court receives thousands of petitions for certiorari; in 2001 the number stood at approximately 7,500, and had risen to 8,241 by October Term 2007. The Court will ultimately grant approximately 80 to 100 of these petitions, in accordance with the rule of fourRule of four
The rule of four is a Supreme Court of the United States practice that permits four of the nine justices to grant a writ of certiorari. This is done specifically to prevent a majority of the Court from controlling the Court's docket...
. The workload of the court would make it difficult for each Justice to read each petition; instead, in days gone by, each Justice's law clerk
Law clerk
A law clerk or a judicial clerk is a person who provides assistance to a judge in researching issues before the court and in writing opinions. Law clerks are not court clerks or courtroom deputies, who are administrative staff for the court. Most law clerks are recent law school graduates who...
s would read the petitions and surrounding materials, and provide a short summary of the case, including a recommendation as to whether the Justice should vote to hear the case.
This situation changed in the early 1970s, at the instigation of Chief Justice Warren E. Burger. In Burger's view, particularly in light of the increasing caseload, it was redundant to have nine separate memoranda prepared for each petition and thus (over objections from Justice William Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
) Burger and Associate Justices Lewis Powell, Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
, Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
and William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
created the cert pool. Today, all Justices except Justice Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
participate in the cert pool. Justice Alito withdrew from the pool procedure late in 2008.
The operation of the cert pool is as follows: Each participating Justice places his or her clerks in the pool. A copy of each petition received by the Court goes to the pool, is assigned to a random clerk from the pool, and that clerk then prepares and circulates a memo for all of the Justices participating in the pool. The writing law clerk may ask their Justice to call for a response to the petition, or any Justice may call for a response after the petition is circulated.
It tends to fall to the Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
to "maintain" the pool when its workings go awry:
The same note went on to observe, with typical Rehnquist understatement, that "[t]his sort of trade has the potential for undermining the policy of random assignment of memos, and is, to put it mildly, 'not favored.'"
Criticisms
The cert pool remedies several problems, but creates others.- Memos prepared for an audience of nine cannot, by definition, be as candid as private communications within chambers; moreover, they must be written in far more general terms.
- The fate of a petition may be disproportionately affected by which clerk writes the pool memo:
- Prof. Douglas A. Berman has argued that the cert pool substantially weights the preponderance of capital cases on the court's docketDocketDocket may refer to:*Docket , the official schedule of proceedings in lawsuits pending in a court of law. Term also includes a case identification number and reference point and case history for all case work involving a particular case....
. - Lyle Denniston of SCOTUSblogSCOTUSblogSCOTUSblog is a law blog written by lawyers and law students about the Supreme Court of the United States . The blog is sponsored by Bloomberg Law. The blog's first post occurred October 1, 2002. The blog moved to its current address on February 7, 2005. In the same year, it was featured by...
has argued that the cert pool is partially responsible for the Court's shrunken (by historical standards) docket.
Further reading
- Bob WoodwardBob WoodwardRobert Upshur Woodward is an American investigative journalist and non-fiction author. He has worked for The Washington Post since 1971 as a reporter, and is currently an associate editor of the Post....
. (1979) The BrethrenThe Brethren (Bob Woodward book)The Brethren is a 1979 book by Bob Woodward and Scott Armstrong. It gives a "behind-the-scenes" account of the United States Supreme Court during Warren Burger's early years as Chief Justice of the United States....
, pp. 329–30. ISBN 0671241109
Footnotes
- Chief JusticeChief Justice of the United StatesThe Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
William H. Rehnquist, Remarks at University of Guanajuato, Mexico, 2001-9-27; see also, Booknotes, 1998-6-14 (transcript). - Caperton v. Massey Coal, 556 U.S. __, __ (Roberts, C.J., dissenting) (slip op. at 11).
- See Procedures of the Supreme Court of the United States#Selection of cases.
- It is possible that Burger took inspiration for the cert pool from the manner in which the Court had been handling in forma pauperisIn forma pauperisIn forma pauperis is a Latin legal term meaning "in the character or manner of a pauper". In the United States, the IFP designation is given by both state and federal courts to someone who is without the funds to pursue the normal costs of a lawsuit or a criminal defense...
petitions. From the tenure of Chief Justice Charles Evans HughesCharles Evans HughesCharles Evans Hughes, Sr. was an American statesman, lawyer and Republican politician from New York. He served as the 36th Governor of New York , Associate Justice of the Supreme Court of the United States , United States Secretary of State , a judge on the Court of International Justice , and...
until at least Burger's arrival, IFP petitions would go not to all chambers, but to the Chief Justice's chambers only, where the Chief's clerks would prepare a memo circulated to all other chambers, in a very similar manner to the cert pool's operation. http://www.scotusblog.com/movabletype/archives/2006/10/ask_the_author_6.html - Justices Stevens and Alito do not participate; the Court's most recent member, Justice Sotomayor, is currently participating. A. Liptak, http://www.nytimes.com/2008/09/26/washington/26memo.html?ex=1380168000&en=d58acbfb583fd4f2&ei=5124&partner=permalink&exprod=permalink, New York Times, 09/25/08; T. Mauro, Roberts Dips Toe Into Cert Pool, Law.com, 2005-10-21; T. Mauro via The Standdown Texas Project http://standdown.typepad.com/weblog/2009/09/justice-sotomayor-joins-the-cert-pool.html, The Standdown Texas Project, 2009-09-22.
- T. Mauro, Rehnquist's Olive Branch Too Late?, Law.com, 6/1/2004
- L. Greenhouse, How Not to be Chief Justice, 154 U. Penn. L. Rev 1365 at 1370
- Eduardo Penalver (Clerk to Justice Stevens, OT 2000, thus working at the Supreme Court during a term where the pool operated, but for a chambers not participating in the pool), Roberts’ Cert Pool Memos; Think Progress, 2005-8-2.