C, Cert Pool.
Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman
Edited By: Kermit L. Hall
With thousands of *petitions for *writs of *certiorari to consider each term, the Supreme Court justices have long relied on their law *clerks’ help to identify “certworthy” cases. Beginning in 1972, Chief Justice Warren *Burger and Justices Byron *White, Harry *Blackmun, Lewis *Powell, and William H. *Rehnquist pooled the efforts of their clerks: one clerk writes a single “pool memo” on each case for all the participating justices. The number of justices in the cert pool grew to six when Justice Sandra Day *O’Connor joined the Court in 1981; the number remained at six for the rest of the 1980s, with Justices Antonin *Scalia and Anthony *Kennedy participating; and the number grew to eight when Justice David (p. 156) *Souter joined the Court in 1990 and Justice Clarence *Thomas joined the Court in 1991.
The mechanics of the cert pool are straight-forward. An administrator in the *chief justice’s chambers systematically allocates the cases on each conference list among the participating justices. Each justice’s law clerks then divide the cases assigned to that justice’s chambers among themselves. With eight justices in the pool and four clerks in most chambers, a clerk generally writes four pool memos each week. The finished memos go to the administrator, who checks them for technical errors and distributes them to the participating justices.
The format for pool memos is well established. The heading identifies the case and provides basic information about it (such as the lower court and judges). Section 1 provides a brief summary of the case—often only a sentence or two. Section 2 describes the facts and the lower-court decision. Section 3 summarizes the parties’ contentions. Section 4 analyzes the case and evaluates the contentions. Section 5 recommends a disposition. The memo concludes with additional information that might be helpful (such as the existence of a response), the date, and the name of the clerk who wrote the memo. Within this format, there is tremendous variation. A complicated case may require a thirty-page memo; a frivolous case may take only two pages.
When a pool memo arrives in chambers, one of the justice’s own law clerks reviews it. Often the reviewing clerk simply agrees with the memo’s recommendation, but in some cases the clerk will examine the original papers, do additional research, or even write a separate memorandum solely for his or her own justice.
Critics object that the cert pool reduces the number of people who screen each case. Supporters observe, however, that clerks writing pool memos take a close look at each assigned case. This one close look is arguably better than the eight cursory reviews that might well have occurred under the old system.
Michael F. Sturley