Legal News

What Does the Cert Pool Say About the Power of SCOTUS Clerks?

By Dan Slater

While still a law firm associate we reviewed two books about Supreme Court clerks. Both posed the same question — how much power do Scotus clerks really have? — but came to different conclusions. In “Courtiers of the Marble Palace” Todd Peppers found that the myth of clerk-as-puppet-master is little more than a myth, while Artemus Ward and David Weiden, in “Sorcerers’ Apprentices,” claimed that that potential for clerk abuse — “particularly in the area of opinion writing” — is a real phenomenon that requires reform.

The issue surfaced again today in this Supreme Court Memo, by the NYT’s Adam Liptak, which reports a little piece of news that will be fascinating to hardcore Court watchers: Justice Alito is getting out of the cert pool.

In other words, reports Liptak, Alito is joining Justice Stevens in declining to subscribe to the “shared legal labor pool that streamlines the work of reviewing incoming cases.” Instead, Alito and Stevens will rely on their own clerks — lucky ducks! — “to help cull perhaps 80 worthy cases from the thousands of appeals, called petitions for certiorari, that reach the court each year.” (Alternatively, the justices who participate in the “cert. pool” receive a common “pool memo” on each case from a single clerk.)

“The benefit [of the cert. pool] is efficiency,” David R. Stras, a law prof at the University of Minnesota, tells the NYT. Stras has studied the subject and reviewed many of the pool memoss released with Justice 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, he adds, the pool system puts “enormous influence and power in a single clerk.”

The next expert to speak to the NYT is none other than Todd Peppers, author of “Courtiers of the Marble Palace,” who says the importance of the pool memo could be overemphasized. “Because of concerns about quality of the memos and the honesty of the analysis,” Professor Peppers said in an e-mail message, “former law clerks told me that some justices — such as Ruth Bader Ginsburg, Anthony Kennedy, Harry Blackmun, and Lewis Powell — have had their law clerks review the cert. pool memoranda prepared by other chambers, add their own written comments and suggestions, and occasionally write a new cert. memo.”

Full post as published by Law Blog - WSJ.com on September 26, 2008 (boomark / email).