Court Returns in 5 Days; 2,000 Petitions Sorted by Cert. Pool

The first conference of the U.S. Supreme Court's 2013 Term is set for September 30. How many cases, from the petitions filed over the summer, will the Court be hearing?

The numbers game is simple. According to figures provided by USA Today, roughly 8,000 petitions for certiorari are filed with the Supreme Court every year. Last year, the court took 77 cases. That puts the cert. success rate at about 0.0375 percent.

How does the court sort through the mess? The court clerks, and the "cert. pool" have been hard at work, sorting through approximately 2,000 petitions, since their year-long clerkships began in July.

Cert. Pool

Justice Lewis Powell conceived the idea in the early 1970s. Instead of each justice's team of clerks reviewing every single one of the 8,000 or so petitions, why not have them divide-and-conquer the lot? Not only is the process less redundant, but it allows clerks to give individualized attention to each petition that they review.

Each clerk then prepares a "pool memo" for each of his or her assigned cases. The memo is distributed to each of the participating justices before they meet in conference to decide which cases to take.

The concept isn't without criticism. Delegating the cert. power to a team of inexperienced 25-year-old law clerks carries its dangers, as does putting the power of grant or deny in the hands of a single clerk. Though they obviously don't make the final decision, their "grant" or "deny" recommendations do carry significant weight, especially considering the sheer quantity of cases that try to make their way onto the docket.

The New York Times brought up another concern: clerks often take the "safe" way out and deny a petition, as authoring a memo that leads to an "improvidently granted" petition is apparently a major embarrassment.

The dangers of the cert. pool are mitigated, in part, by some justices requiring their own clerks to review the pool memo, and in some cases, to add annotations or provide a second memo.

"[W]hen in doubt, we do read the petitions and responses," Justice Ginsburg stated in a court newsletter quoted by the Times. "Whenever I think a case may be cert. worthy, I will do the homework required and will not rely solely on a pool memorandum."

Other justices have taken a different approach, and opted-out of the pool altogether.

Opt-Out

Justice John Paul Stevens, the third-longest serving justice in Supreme Court history, was a notable non-participant in the pool, preferring instead to have his clerks review every petition. The second review, by his staff, acted as a sort of check on the concentration of power in, and concerns with, the cert. pool.

In 2008, two years before Stevens' retirement, Justice Samuel Alito also opted-out of the pool, putting his own clerks to work, reports the Times. The other eight current justices all participate in the pool, leaving Alito's team as the new second-look review of cert. recommendations.

September 26, 2013 Editor's Note: This post was revised to clarify that the first conference of the High Court's 2013 Term is set for September 30. Oral arguments begin October 7.

Related Resources:

• SCOTUS Needs Tech-Savvy Clerks; Link Rot Plaguing Court (FindLaw's U.S. Supreme Court Blog)
• 3 Important Battles (Speech, Search, Press) Seeking SCOTUS Cert. (FindLaw's U.S. Supreme Court Blog)
• SCOTUS's First Big Case of the Term: Campaign Contribution Limits (FindLaw's U.S. Supreme Court Blog