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The Supreme Court "Cert Pool" Criticized:
Tony Mauro has coverage of a recent panel on the cert pool in which Mauro reports that several very prominent practitioners criticized the Supreme Court's existing "cert pool" on the ground that the Justices defer too much to the law clerk's recommendation.

  I didn't see the panel, so I can only comment on Mauro's summary. But to the extent the argument is that a law clerk's ultimate recommendations on whether to take or deny a case has a significant influence on what the Justices do, I tend to disagree. Pool memos play a tremendously important role in explaining whether a case is important, if an alleged split is real, and the like. At the same time, I tend to doubt the Justices pay a lot of attention to the ultimate recommendation of a law clerk on whether to take a case. It's true that David Stras found a correlation, but I suspect the causal arrow is in the other direction: There is a connection between law clerk recommendations and what the Justices do because the law clerk recommendations are designed to try to predict what the Justices will do. That's my sense, at least.

  As for why the number of cases the Court takes has dropped, I think changes in personnnel explains a lot. Two decades ago, a few of the Justices had much less strict standards for what cases to take. In particular, I understand that Justices White and Blackmun thought the Court should take a lot more cases, and they often voted to grant cert. When these Justices retired, the number of cases the Court took dropped.

  UPDATE: I have expanded the post a bit to clarify it, partially in response to Roy Englert's comment.
troll_dc2 (mail):
Do you think that the Court should be deciding more cases?
9.21.2009 5:16pm
Steve:
My goodness, I should hope there would be a correlation. What would it say about the judgment of Supreme Court clerks if there weren't?
9.21.2009 5:18pm
OrinKerr:
troll_dc2,

If the Court gets it right the merits, sure.
If the Court just screws things up more, no way. :-)
9.21.2009 5:21pm
troll_dc2 (mail):
OK: Are you troubled by the large number of circuit splits that the Court lets fester for years?
9.21.2009 5:24pm
OrinKerr:
troll_dc2,

Which ones do you have in mind? I don't think I could answer that in the abstract.
9.21.2009 5:25pm
Ben Barros (mail):
If the justices don't follow the recommendations, why have the clerks make them? Put another way, would it help with fears about the pool if the clerks examined the issues and noted flaws, but didn't suggest an outcome?
9.21.2009 5:26pm
Anderson (mail):
Speaking of law clerks, I was reading a biography of Dean Acheson, where I learned not only that Acheson clerked for Brandeis (while revering Holmes, who with George Marshall was one of the only two truly "great" men he met), but that Holmes and Brandeis apparently started the law-clerk thing at the high Court.

Anyone up on the history of law clerking in the U.S. courts?

... Holmes admirers might want to dip into that James Chace bio of Acheson to see what anecdotes appear there, btw.
9.21.2009 5:27pm
Roy Englert:
Orin, the argument is a little more sophisticated than your summary of Tony's summary gives it credit for. The point is not that the Justices defer unthinkingly to the clerks' recommendations. Quite the contrary, David Stras's data set demonstrates that there is an extraordinarily high correlation between the NUMBER of grants recommended by the pool and the NUMBER of actual grants by the Justices, but shows that the Justices always grant far more petitions than the pool recommends, and that some recommended grants become denials and some recommended denials become grants.

The problem that I discussed at the conference is that there is evidence -- anecdotal, to be sure -- that some cases that should get the Justices' attention simply fall through the cracks with minimal attention. Some cases, in other words, are effectively "buried" by the cert. pool. Among the pieces of evidence that such a phenomenon may occur are some Justices' own protestations that they haven't told the clerks to tighten up the criteria, but that very few certworthy cases come to their attention. It's possible that the explanation is an actual drop in the number of certworthy cases, but it's also possible that the Justices don't know what they're not seeing, or at least not spending very much time on.
9.21.2009 5:34pm
ShelbyC:

If the Court gets it right the merits, sure.
If the Court just screws things up more, no way. :-)


So....no?
9.21.2009 5:41pm
OrinKerr:
Roy,

Thanks for the clarification. I didn't mean to suggest that you all said the Jusices defer unthinkingly; only, as I put it, that they defer "too much."

I agree with your concern about individual cases falling through the cracks: If a law clerk doesn't do his or her job, that can happen. For that reason, I think it's important to have one or two Justices not in the pool. Such an arrangement makes it considerably less likely that will happen.
9.21.2009 5:45pm
Mike& (mail):
Spend about 30 minutes on Westlaw reading post-Garcetti employee speech cases. The law is a mess in the lower courts. It'd be nice if the Supreme Court would clean up after itself.

I personally wouldn't like what the Court would do. Still, employee speech law is now a mess. As a theoretical matter, the Court should clarify the law.

I'm sure everyone with a specialized understanding of the law could list at least one area of that that's a mess, thanks to the Supreme Court.

I imagine, Orin, you too could think of at least a couple of issues that need resolved.
9.21.2009 5:47pm
WhatAbout:
What about the Justices that don't participate in the cert pool? How would the clerks "bury" certworthy cases in that event?

Besides, the high correlation between the number of grants recommended by the pool and the number ultimately granted by the Justices is so blindingly obvious it staggers belief--there's a target number of cases available to be heard in a given term. With no insight into the process, my guess is that the cert pool clerks are told, you have to recommended roughly Y cases to be heard out of this pool of X thousand. The Justices tinker at the margins, and ultimately hear roughly Y cases, some of them having picked through recommendations for Y+10% by the cert pool.

This correlation is surprising? It's like saying, "you need to pick nine players for your baseball team out of these thousand" and being shocked that nine players are recommended and ultimately take the field.
9.21.2009 5:49pm
Roy Englert:
Orin, I should have added in my first post (though it was already long) that David Stras is well along in an empirical study of the exact phenomenon you describe, namely the effect of personnal changes on the size of the docket. Among his specific conclusions is that every single Justice who joined the Court during Justice Blackmun's tenure (the period for which data are available) voted to grant cert. in fewer cases than her or his predecessor. So David will soon publish powerful support for your thesis.

Questions remain, however. Among them: Do personnel changes account for the ENTIRE drop? (Almost certainly not.) And WHY has each Justice voted for fewer grants than a predecessor? Personal idiosyncracies? Defensive denials? A genuine drop in the number of certworthy cases? Unintentional pool influence? These are interesting questions to explore, at least for us Supreme Court nerds, and there are ways other than pure theorizing to try to analyze at least some of them.

Last Friday's conference will, I understand, be available in podcast form at some point. It certainly isn't going to be interesting to a large segment of the population, even the legal population. For the few who are genuinely interested, however, there may be some nuances that news reports can't pick up, and David describes his new research in some detail.
9.21.2009 5:53pm
stoshy (mail):
Fewer cert grants might be have other explanations. The right-of-center justices might be disinclined to grant cert because philosophically they don't like the idea of broad social problems and big issues being decided by unelected judges as opposed to legislatures. Analogously, the left-of-center justices might be disinclined to grant cert lest, being outvoted by the right-of-center justices, the "bad law" in a couple of circuits or states become "bad law" nationwide.
9.21.2009 6:03pm
Anderson (mail):
As a theoretical matter, the Court should clarify the law.

Yes, but in many areas, the Court probably does not want to clarify the law.

Where one end of the Court wants vanilla, and the other end wants chocolate, and a couple of justices in between are torn between strawberry and Neapolitan, there's a strong incentive not to order ice cream just yet.
9.21.2009 6:06pm
martinned (mail) (www):

The right-of-center justices might be disinclined to grant cert because philosophically they don't like the idea of broad social problems and big issues being decided by unelected judges as opposed to legislatures.

That doesn't sound like any SCOTUS justice I've ever heard of.


Analogously, the left-of-center justices might be disinclined to grant cert lest, being outvoted by the right-of-center justices, the "bad law" in a couple of circuits or states become "bad law" nationwide.

That one makes more sense, but doesn't explain why the right-of-center justices don't vote to grant cert. It only takes four votes.
9.21.2009 6:07pm
drunkdriver:
As for why the number of cases the Court takes has dropped, I think changes in personnnel explains a lot.

And the precision applied by the Court to its opinions, which is far greater than in the past. Take more cases, you will either lose some of that precision, or have more but shorter opinions- but with lengthy separate opinions becoming the norm in so many big cases, that doesn't seem to be in the cards.

Of course Orin would know better than any of us, but my impression is that the clerks, and most of the justices, work very very hard, to the point that there's probably not a lot of extra time to go around. If anybody there is working 20-hour weeks and spending lots of time on the phone or internet, I'd be shocked. The time you can spend working is a zero-sum game.

The kind of painstaking attention to detail that goes into a Court opinion today, versus 40 years ago or more, is on a whole different order from what one sees in those old opinions.
9.21.2009 6:07pm
Mike& (mail):
Where one end of the Court wants vanilla, and the other end wants chocolate, and a couple of justices in between are torn between strawberry and Neapolitan, there's a strong incentive not to order ice cream just yet.

Sure. With an unstable middle, no ideological justice wants to risk losing.

I was responding to Orin's point, though. Orin seems to be suggesting that the Court should not grant cert. in more cases.
9.21.2009 6:12pm
Anderson (mail):
That one makes more sense, but doesn't explain why the right-of-center justices don't vote to grant cert. It only takes four votes.

Giving Roberts, for instance, some credit (due or not), he for instance might not want to push a tricky issue with a premature cert grant, if it's possible that he might draw a 5-4 decision going the other way from what he wants.

I would think WWKD (What Would Kennedy Do?) is a powerful consideration for both sides in considering cert grants.

... There's a good SNL skit to be made, where justices from opposing wings keep calling Kennedy to ask him to go bowling, dropping by his house with freshly-baked cookies, etc.
9.21.2009 6:15pm
Anderson (mail):
The kind of painstaking attention to detail that goes into a Court opinion today, versus 40 years ago or more, is on a whole different order from what one sees in those old opinions.

Very good point.
9.21.2009 6:18pm
yankee (mail):
The right-of-center justices might be disinclined to grant cert because philosophically they don't like the idea of broad social problems and big issues being decided by unelected judges as opposed to legislatures.
This doesn't make sense to me. By the time the Supreme Court gets involved, other judges have been dealing with the issue for some time. At that point the question is which judges are going to decide, not whether they will. And there aren't that many cases that deal with "broad social problems and big issues" anyway.
9.21.2009 6:20pm
troll_dc2 (mail):
What painstaking attention? Wasn't there a case just recently in which the Court overlooked the existence of a federal law that undercut the assertions of the majority with regard to the death penalty for non-murder defendants?
9.21.2009 6:21pm
ShelbyC:

Wasn't there a case just recently in which the Court overlooked the existence of a federal law that undercut the assertions of the majority with regard to the death penalty for non-murder defendants?


Well, not just the court, but everyone filing briefs as well, correct?
9.21.2009 6:34pm
Mike& (mail):
The kind of painstaking attention to detail that goes into a Court opinion today, versus 40 years ago or more, is on a whole different order from what one sees in those old opinions.

That would be true if the Justices were doing the heavy lifting. Most SCOTUS cases are well-briefed - with heavy amicus support. So it's not like Justices need to pull 18 hour days. The detail is provided to them by the advocates.
9.21.2009 6:35pm
Dilan Esper (mail) (www):
I agree with your concern about individual cases falling through the cracks: If a law clerk doesn't do his or her job, that can happen. For that reason, I think it's important to have one or two Justices not in the pool. Such an arrangement makes it considerably less likely that will happen.

This seems to me to get it just about right.

WITHOUT the nonparticipating justice, the cert pool really does put too much power in the hands of a single clerk (even if the recommendations aren't slavishly followed, they still can bury a meritorious petition).

But so long as we have at least a couple of different clerks reviewing petitions and preparing memos, we're probably OK.
9.21.2009 6:39pm
CDU (mail) (www):

For that reason, I think it's important to have one or two Justices not in the pool. Such an arrangement makes it considerably less likely that will happen.

It certainly helps, though the clerks outside the cert pool are going to have a considerably heavier workload than those who are part of the pool. They may not have enough time to dedicate to deeply examining cases that have slipped through the cracks in the pool. The obvious solution would seem to be to have multiple pools, so one justice's clerks don't have to review every cert. petition, yet every petition gets seen by more than one set of eyes.
9.21.2009 6:49pm
Roy Englert:
CDU, having multiple pools is a solution I have quietly advocated for years. At Friday's conference, I didn't mention the idea (because my panel was assigned the topic of analyzing the causes of the shrinking docket, not whether shrinkage is good or bad or what the solutions might be if solutions are needed). Seth Waxman did, however, suggest multiple pools.
9.21.2009 7:03pm
CDU (mail) (www):

Seth Waxman did, however, suggest multiple pools.


I saw that in Mauro's article. From the summary it sounded like Waxman was suggesting something more than just two pools though.
9.21.2009 7:11pm
Gonzer Maven (mail):
My perception is that the clerks are predisposed to searching for reasons not to grant cert, i.e., to search for cases that present the issue(s) just so -- clean and unencumbered by other factors. But bright as they are, they often are unable to make a sound judgment on the importance of an issue, and on the need to deal with it.

If the Justices knew all about all sorts of areas of the law and what issues are important in them, that might not be too much of a problem. But they don't. Given their background and their status as generalists who don't understand the fine points of various specialized areas of the law, they are unable to make a sound decision.
9.21.2009 8:24pm
Anderson (mail):
with heavy amicus support

"Support"? Sometimes. Amicus? Sometimes not.
9.21.2009 9:38pm
MGoBlue (mail):
When CJ Roberts spoke here 2 weeks ago he had an interesting explanation for the drop in cases: electronic legal research. He said the ease with which information on cases is available has helped clear up a lot of questions that previously would have made it up to the court.
9.22.2009 7:28am
ckirksey (mail):
Orin:
Slightly off topic, but how many justices must agree to grant cert and is this just a rule of the SCOTUS? If it is just a rule could the court then allow cert for state appeals only if all justices agree? What about majority rule in decision making is this a SCOTUS rule or act of congress? If SCOTUS rule could they then decide that the state only wins on appeal if all justices agree? And then only unanimous decisions would count as precedent. Just asking. Thanks.
9.22.2009 8:48am
Kingsley Browne (mail):
The fact that only one clerk in the pool is responsible for writing the cert memo does not mean that only one set of eyes reviews the petition. I don't know what the current practice is, but in the past, a clerk in at least some of the participating justices' chambers reviewed the pool memo and made a separate recommendation to his or her own justice. Often it would be "I agree. Deny." Sometimes, however, it would entail substantive disagreement with the analysis in the memo, which might or might not lead to a difference in the recommendation. Also, justices sometimes look at some of the cert papers themselves. I think much of the discussion pertaining to this post may overstate the influence of the particular clerk who writes the pool memo.
9.22.2009 9:07am
Roy Englert:
Professor Browne -- The serious academic studies of the influence of the cert. pool do not depend on facile assumptions about how much scrutiny a case gets beyond the pool memo. Instead, they use the Blackmun papers (which cover, among other Terms, the Term in which you clerked for Justice White) to draw empirical conclusions about the relationship between pool recommendations and cert. grants. The empirical conclusions include an extraordinarily high correlation between the number of recommendations and the number of grants.

The next step is to assess the meaning of the correlation. Some, like David Stras and me, are inclined to the view -- not currently proven or disproven empirically -- that the clerks influence the Justices quite a bit. The influence is not exerted in a simple way, like the Justices always following the pool recommendation, but the hypothesis is that the entire process nevertheless has as its net result a strong influence by the clerks over the Justices' cert. decisions. The major opposing hypothesis -- espoused by Orin Kerr in this blog post, and by others -- is that the Justices cause the clerks to recommend numbers of grants that correlate highly with the actual number of grants, or, as Orin puts it, that the causation arrow runs in the other direction. Yet another hypothesis is that certworthiness is, in aggregate if not in each individual case, determinable to a relatively objective degree, and that the high correlation is the result of a decline in the number of certworthy cases over the period studied.

None of this depends on the simplistic -- and verifiably false -- hypothesis that the result of having a cert. pool is that only one set of eyes looks at each cert. petition. Rather, the hypothesis is that there is only one INTENSIVE look at each cert. petition, that the resources are not available for other clerks or Justices (in or outside the pool) to give much attention to each petition, and that the result is undue influence of the pool.
9.22.2009 11:11am
George Smith:
It should make us feel warm and fuzzy that so much may be determined by folks who just graduated from law school and haven't ever done anything.
9.22.2009 11:12am
Kingsley Browne (mail):
Roy Englert wrote:


Professor Browne -- The serious academic studies of the influence of the cert. pool do not depend on facile assumptions about how much scrutiny a case gets beyond the pool memo.

. . . .

[T]he hypothesis is that there is only one INTENSIVE look at each cert. petition, that the resources are not available for other clerks or Justices (in or outside the pool) to give much attention to each petition, and that the result is undue influence of the pool.


Perhaps I'm missing something, but aren't these two statements inconsistent?
9.22.2009 12:04pm
Roy Englert:
This is getting to the point of diminishing returns, but no, the two statements are not inconsistent. I asserted that the serious academic studies do not DEPEND ON FACILE assumptions. The words "depend on" were used to point out that they account for other possibilities, rather than simply operating on assumption. The word "facile" was used to distinguish simplistic notions, such as the assumption that the Justices simply do what the clerks recommend, from more sophisticated hypotheses, such as the hypothesis that the scrutiny that is given in addition to the pool memo is real but is insufficient to weed out a number of false negatives.

In addition, the second statement you quote (Professor Browne) was meant to state a HYPOTHESIS that the empirical studies are trying to test. True, I was stating a controversial hypothesis that I am currently inclined to accept, but I used the word "hypothesis" -- in contradistinction to words like "assumption" or "conclusion" -- precisely to recognize that it is a possible conclusion being analyzed, rather than either an assumption that went into a model without any analysis, or a conclusion that one can firmly reach based on analysis.
9.22.2009 12:58pm
Kingsley Browne (mail):
I think my initial post was viewed as being critical of the ongoing research on this issue. It was not. I have not read the research and have no views as to its merit.

My post was largely directed at a recurring theme in the comments to Orin's original post that a single clerk in the pool could scuttle a cert petition because no one else would seriously look at it (or, in some comments, look at it at all). As I suggested in my earlier post, that was not my experience, although perhaps the procedures have changed. In my experience, pool memos were seriously looked at by clerks in other participating chambers and sometimes were the subject of substantial discussion among the clerks.
9.22.2009 2:59pm

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