For almost 20 years, eight of the nine justices on the Supreme Court have assigned their law clerks to a shared legal labor pool that streamlines the work of reviewing incoming cases.
Only Justice John Paul Stevens has declined to participate. He relies on his own clerks to help cull perhaps 80 worthy cases from the thousands of appeals, called petitions for certiorari, that reach the court each year. The justices who participate in the arrangement, known around the court as the “cert. pool,” receive a common “pool memo” on each case from a single clerk. The memo analyzes the petition and makes a recommendation about whether it should be granted.
Justice Alito has said nothing publicly about his decision to exit the pool. His move was confirmed by Kathleen Arberg, the court’s public information officer.
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.
Todd C. Peppers, a professor of public affairs at Roanoke College and the author of “Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk,” said 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.”
Justice Alito’s move reverses a trend lasting decades. The pool had grown steadily since it was conceived in the early 1970s at the suggestion of Justice Powell, who prized efficiency. At first, five justices participated.
“In true Washington, D.C., fashion,” Kenneth W. Starr wrote of the cert. pool in the Minnesota Law Review in 2006, “this modest government program has grown significantly and now possesses great power.”
Mr. Starr, the dean of the Pepperdine University School of Law, is a former federal judge, independent counsel in the Whitewater investigation and law clerk to Chief Justice Warren E. Burger, one of the first participants in the pool. In the law review article, he lamented “the unjustifiable influence of the cert. pool” and, in particular, “a hydraulic pressure to say no.”
A petition accepted that must later be dismissed as “improvidently granted” is a significant embarrassment to the clerk in question. On the other hand, it is hard to get into trouble, Mr. Starr said, by recommending a denial. “The prevailing spirit among the 25-year-old legal savants, whose life experience is necessarily limited in scope, is to seek out and destroy undeserving petitions,” he wrote.
The justices decided 67 cases last term, about half the number in an average year two decades ago. But Justice Alito has said the rise of the pool and the size of the docket are unrelated.
“I don’t think the cert. pool is responsible,” he told Tony Mauro of Legal Times last year. “There are plenty of cases where the clerks recommend a grant, and we deny, and plenty where they recommend we deny, and we grant.”
Justice Alito joined the court in 2006 and is its most junior member. “Alito is starting to feel more comfortable and willing to rethink the way he does things,” said Richard J. Lazarus, a law professor at Georgetown. Professor Lazarus said he welcomed the justice’s move, partly because it suggests that the court should reconsider how it decides which cases to hear. “It’s the court’s most vulnerable point,” Professor Lazarus said of the decision to hear or turn down a petition.
Justice Ginsburg, who remains in the pool, has cautioned against overstating the role of clerks and of pool memos. “We read pool memos with care and the judgment that comes with experience,” she once told Docket Sheet, a newsletter published for Supreme Court employees. “And when in doubt, we do read the petitions and responses.”
“The law clerks are highly intelligent, very able, uncommonly diligent,” she said. “They save us hours upon hours of labor. But most of them are also young and in need of the seasoning that experiences in life and in law practice afford. Whenever I think a case may be cert. worthy, I will do the homework required and will not rely solely on a pool memorandum.”