Justice Alito Gets Out of the Pool:

Today's New York Times reports that Justice Alito has withdrawn from the cert pool. This means that there are seven justices left in the pool -- all but Justices Alito and Stevens.

Students of the court say there are costs and benefits to relying on pool memos, which are prepared by smart but relatively inexperienced law clerks.

"The benefit is efficiency," said David R. Stras, a law professor at the University of Minnesota who has studied the subject and reviewed many of the pool memorandums released with Justice Harry A. Blackmun's papers. The pool, he said, avoids the time-consuming duplication of efforts that would result from having a clerk in each justice's chambers consider every petition.

But the pool system "does put enormous influence and power in a single clerk," Professor Stras said, adding, "I'm quite sure there are cases that fall through the cracks."

Some argue that having several sets of eyes review each petition — the pool clerk, along with clerks from the chambers of Justice Stevens and now Justice Alito — may serve as a valuable check. The pool system, though, has the virtue of ensuring that at least one clerk will give each petition a careful look, which might not be possible were each justice's clerks to review every petition. (Justices typically have four clerks each.)

Critics of the cert. pool say it has led to homogenization and a lack of candor, a consequence of writing for an audience broader than only the clerk's own justice. But the pool memorandums are often only a starting point, with each justice's own clerks sometimes reviewing, highlighting and annotating the more important ones.

It seems to me that one way to get the efficiency benefits of the cert pool without some of the drawbacks would be to have two separate cert pools that review every petition. This would have the benefit of ensuring that every petition is reviewed by more than one person, but not impose the burden of reviewing every petition in a single justice's chambers.