Cert Pool Memos from 1986 to 1994 Now Online:
Are you curious about what Supreme Court "cert pool" memos look like? Do you have a favorite former clerk whose pool memos you have always wanted to read? Did you file a cert petition 20 years ago that you still feel was wrongly denied, and do you want to know why? Do you want to read snarky annotations from Blackmun clerks about pool memos written by conservative clerks?

  Now, thanks to lawprof Lee Epstein, you can read as many cert pool memos as you want from the Blackmun archives, covering 1986 to 1994, all in .pdf format. Serious Supreme Court geeks will get a kick out of this, in part because many of the pool memo authors are now familiar names. For example, in the October Term 1993 files you'll find pool memos from co-bloggers Eugene and David P., Solicitor General Paul Clement, DC Circuit Judge Brett Kavanaugh, 10th Circuit Judge Neil Gorsuch, and several other big wigs. Thanks to How Appealing for the link.
Did anyone else find it odd that there were frequently notes about the cert pool author, including their circuit court clerkship and law school?
9.27.2007 11:19pm
mikec&F (mail):
9.27.2007 11:22pm
Does anyone know how this paper release process works? Will we be getting access to all Rehnquist's papers at some particular date, or does it vary?
9.27.2007 11:46pm
mikec&F (mail):
Did anyone else find it odd that there were frequently notes about the cert pool author, including their circuit court clerkship and law school?

I just noticed that. And, yeah, that's funny. Imagine seeing this notation:

Joe Blow/Reinhardt/Yale

Imagine that the case discussed in the cert. memo involves an AEDPA case (granting relief) from the Ninth Circuit? ;-)
9.27.2007 11:49pm
Paul Karl Lukacs (mail) (www):
This may be the nerdiest post in VC history.

A good "nerdiest" test: Is this post more or less nerdy than a post arguing in favor of revisions to The Bluebook?
9.27.2007 11:53pm
Paul, I like to think I'm in the running, but the competition can be stiff.
9.27.2007 11:57pm
Ilya Somin:
A good "nerdiest" test: Is this post more or less nerdy than a post arguing in favor of revisions to The Bluebook?

In my defense, I was arguing for abolition of the Bluebook, not merely revision. A Bluebook-less world would be less nerdy than the status quo, I think.
9.27.2007 11:57pm
kirk (mail):
Okay, too many memos for me to scan through looking for Eugene or David P. If anyone else would care to share the results in an index or point us to a few typical or interesting briefs, I'm all ears.
9.27.2007 11:57pm
Ted Frank (www):
Running through a handful of the OT93s looking for Volokh or Clement memoes, it was very disturbing to see at Docket No. 93-4 a case I had briefly worked on as a summer associate; that was probably the only Supreme Court case I worked on that summer. Surprising number of typos in that cert memo, and it wasn't clear if all the corrections came from an exceptionally nerdy Blackmun clerk or from some other sort.
9.28.2007 12:00am
Christopher M (mail):
WTF, they couldn't get access to a pagefeed scanner?
9.28.2007 12:17am
It looks like the Blackmun clerk was likely Michelle Alexander (based on the "MA" notation on the top left of the memo). You can trace back a lot of remarks to clerks. Check out the wikipedia listing of former clerks.
9.28.2007 12:17am
Ted Frank:

There aren't actually that many typos in the 93-4 memo; I counted only three or four. Most of the written edits on the memo are stylistic, such as the insertion of articles where the poolwriter, following a shorthand format, eliminated them. It's well known that Justice Blackmun was a stickler for proper spelling, grammar, and syntax, so those markups probably reflect his own personal disdain for particular shorthand techniques. Alternatively, they may be the work of his clerks, who were perhaps instructed to "clean up" memos before passing them on to Justice Blackmun, thus ensuring that he did not expend too much effort harrumphing over stylistic peccadillos.

Speaking from experience, extraordinarily few pool memos are 20 pages long, as that one is (it's probably much longer, since the discussion section is inexplicably cut off). Ideally there should be zero typos in any memo, but three or four in a 20-page memo written in a week (in addition to all of a clerk's other work) is not really that bad. In addition, the memo indisputably covered the case in a very thorough manner (as far as pool memos go). There's really nothing "disturbing" about how the clerk treated the case. Most lawyers should be so lucky as to get that much attention paid to his or her case. If anything, the memo is way too long -- especially for an ultimate recommendation of deny.
9.28.2007 12:46am
Eric Muller (www):
Christopher M., when you do research in an archive, you typically are not allowed to use a pagefeed scanner, and must snap digital photos of each page.

This is an improvement over the older system, which required you to stand in line for a xerox machine.

I too found it interesting that Blackmun wanted to know, for each cert pool clerk/author, where the person went to law school and for whom s/he had clerked in a lower court. And I notice that my law school classmate Bob Giuffra is always labelled "Federalist" too.

Seems awful petty.
9.28.2007 12:47am
LOL @ Eugene's conception of fly being attacked with sledgehammer at 93-7.
9.28.2007 3:41am
That sledgehammer could very well be a flyswatter. Ambiguous, frivolous. DENY.
9.28.2007 6:27am
Grant Gould (mail):
The similarity to Wikipedia article-for-deletion/proposed-for-deletion debates is striking.
9.28.2007 7:08am
Ignatius (www):
Why do so many cases involve Russian guys named Petr?
9.28.2007 8:35am
David M. Nieporent (www):
I'm with SCOTUSnerd: it looks a lot more like a flyswatter than a sledgehammer.
9.28.2007 9:11am
Sean M:
Boy, I bet EV never thought that his ASCII flyswatter (excuse me, sledgehammer) would see the light of day.

Ahh, the Internet.
9.28.2007 9:55am
Cheerful Iconoclast (mail) (www):
Will they let you bring in a copy stand? While I am sure it was a lot of work, the photographs look really bad.

If nothing else, the photography could have held the camera vertically, in portrait mode, so that we wouldn't have quite so much image space dedicated to the table. Or, in at least one case, the photographer's finger.
9.28.2007 10:21am
Here's a shot in the dark. Does anybody know who OT91 Blackmun clerk "JM" is? Wikipedia is no help.
9.28.2007 12:07pm
BruceM (mail) (www):
This just reinforces my belief that the Cert Pool is a horrible construct. The motive to recommend a denial of cert is too strong. I've heard that clerks are laughed at and mocked by other clerks when they recommend a grant, and nothing is more insulting and embarassing to recommend a grant that is ultimately denied (good chance of that). So, all of them are either "deny" or "no recommendation" to stick with the status quo.
9.28.2007 12:44pm
Constitutional Crisis (mail):
anyone else with difficulty accessing it?
9.28.2007 1:25pm
CrazyTrain (mail):
it wasn't clear if all the corrections came from an exceptionally nerdy Blackmun clerk

The corrections almost certainly came from Blackmun himself. If you read his bio and the reports of his papers, this was something he always did.
9.28.2007 1:29pm
CrazyTrain (mail):
EricMuller -- I don't think there is anything "petty" about wanting to know the school, circuit judge, Supreme Court Justice and first name of the other clerks. It probably helped Blackmun remember who they were, and if he didn't know who they were, it gave him a tiny bit of info about their possible perspective (though of course, your lower court judge says very, very little about your politics in most instances).
9.28.2007 1:34pm
Quick Question:
Why do some of the descriptive parentheticals give nicknames to the criminal defendant, e.g., "rascally rapist"?

Seems a little bit flippant.
9.28.2007 1:36pm
Quick Question:
The link didn't work, but I was referring to 93-56.
9.28.2007 1:38pm
Stuart Buck (mail) (www):
I'm reminded of Posner's comment:
In another inversion, Justice Harry Blackmun, a genuine eccentric, left the opinion-writing to his clerks after his first years on the Court and concentrated on cite-checking their drafts. He was by all accounts an awesome cite-checker.
9.28.2007 1:50pm
Ted Frank (www):
"Typos" was a misstatement; I meant "corrections," and it's stunning that Blackmun was wasting his time inserting articles into cert pool memo shorthand, but not inconsistent with Posner's portrayal in his account of Blackmun as the worst justice.
9.28.2007 1:58pm
I loved the pencilled-in "??" next to the fly/flyswatter illustration.
9.28.2007 2:00pm
Eric Muller (www):
What seemed petty was noting that a clerk was a "Federalist."
9.28.2007 5:13pm
CrazyTrain (mail):
Eric -- fair enough.

Ted -- Obviously, it was a habit, and I doubt it took up much time. Whether he was a good justice or not is another question, but I don't see this as supporting it.
9.28.2007 5:21pm
CrazyTrain (mail):
What I meant is that I don't see this habit as supporting an argument re the quality of Blackmun as a Justice one way or another (as I realize I was unclear).
9.28.2007 5:23pm
andy (mail) (www):
those files are quite difficult to read.
9.29.2007 1:25am
andy (mail) (www):
Hah, in 91-1135 the clerk notes that petitioner is represented by Robert Bork, a "noted tax expert." You would have thought that someone geeky enough to be a SCOTUS clerk wouldn't mischaracterize Bork as a tax expert (looks like Blackmun, understandably, put a "?" in the margin).
9.29.2007 2:11am
A few mostly unrelated thoughts:

* It would be great if WL/Lexis could contact Prof. Epstein and then put minions on this so that the memos are searchable. I'd be really curious to see what the cert pool memos look like in certain types of cases... particularly patent cases and abortion cases (each for different reasons, obviously).

* The few memos I've skimmed from this site are longer and more thorough than I'd always assumed these things were. If what I've seen is representative, then I have a higher opinion than I had before of how closely the Justices look at each cert petition.

* I wouldn't read much into what Justice Blackmun or his clerks scrawl on these things. Everyone has their own idiosyncratic way of writing on things they read. On the typos, it wouldn't surprise me if Justice Blackmun's mind was simply better at processing grammatical prose than abbreviated prose, and he or his clerks would scrawl "corrections" on the pages to make them easier to read. On the background information on the authors, I think it's normal to wonder about who the author is whenever anything about a memo strikes a Justice as odd. Even if you think that the clerks were all honorable and above reproach, everyone has tendencies and biases.
9.29.2007 10:56am
Interesting that Roe v. Wade was "no reccommendation."
9.29.2007 3:31pm
Also interesting that Roe v. Wade (91-744) had virtually no marks on it -- not even where Thomas's clerk claimed that the Roe doctrine was "implicitly rejected" by the rest of the court.
9.29.2007 3:33pm
the worst thing about this is that it provides more fodder for dishonest groups like PFAW. With 90+% of the memos recommending denials, there'll be lots of opportunities to claim that nominee X was insensitive to petitioner Y. They can even use his own words.

Also, given the shortness of the memos, PFAW can give a lengthy summary of the sympathetic plight of some poor petitioner and then claim that "nominee X gave the petitioner's claims the back of the hand. The injustices at stake weren't bad enough to get nominee X's attention, who found it sufficient to say that there was no split of authority in the courts of appeals."
10.1.2007 11:58am