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The cert pool is a mechanism by which the Supreme Court of the
United States manages the influx of petitions for certiorari to the Court. It was instituted
in 1973, as one of the institutional reforms of Chief Justice Warren E.
Each year, the Supreme Court receives thousands of petitions for
certiorari; in 2001 the number stood at approximately 7,500, and had risen to 8,241 by October Term
2007. The Court
will ultimately grant approximately 80 to 100 of these
accordance with the rule of four. The workload of the court
would make it difficult for each Justice to read each petition;
instead, in days gone by, each Justice's law clerks would read the petitions and
surrounding materials, and provide a short summary of the case,
including a recommendation as to whether the Justice should vote to
hear the case.
This situation changed in the early 1970s, at the instigation of
Chief Justice Warren E. Burger (possibly at the suggestion of
Powell). In Powell's and Burger's view, particularly in light
of the increasing caseload, it was redundant to have nine separate
memoranda prepared for each petition and thus (over objections from
Justice William Brennan) Burger and
Associate Justices Byron
Blackmun, Lewis Powell, and William Rehnquist created the cert
pool. Today, all
Justices except Justice John Paul Stevens and Justice Samuel Alito
participate in the cert pool. Justice Stevens has never opted into
the pool and Justice Alito withdrew from the pool procedure late in
The operation of the cert pool is as follows: Each participating
Justice places their clerks in the pool. A copy of each petition
received by the Court goes to the pool, is assigned to a random
clerk from the pool, and that clerk then prepares and circulates a
memo for all of the Justices participating in the pool.
The writing law clerk may ask their Justice to call for a response
to the petition, or any Justice may call for a response after the
petition is circulated.
It tends to fall to the Chief Justice to
"maintain" the pool when its workings go awry:
- "Rehnquist memos in the Blackmun files chide the clerks for
submitting the memos too late and too long, and for leaving copies
in the recycling bin — a major security breach. But a 1996 note to
pool law clerks is perhaps the most intriguing, suggesting
Rehnquist was concerned that clerks might be shading their
summaries to reflect biases. Rehnquist reminded the clerks that
cases are assigned to them for summarizing 'on a random basis'
partly 'to avoid any temptation on the part of law clerks to select
for themselves pool memos in cases with respect to which they might
not be as neutral as is desirable.'"
The same note went on to observe, with typical Rehnquist
understatement, that "[t]his sort of trade has the potential
for undermining the policy of random assignment of memos, and is,
to put it mildly, ‘not favored.’"
The cert pool remedies several problems, but creates others.
- Memos prepared for an audience of nine cannot, by definition,
be as candid as private communications within chambers; moreover,
they must be written in far more general terms.
- The fate of a petition may be disproportionately affected by
which clerk writes the pool memo:
- "[Cert] pool memos should ideally be balanced and
nonideological. But my memory is that it mattered a great deal
which case wound up with which clerk. For example, a hard-luck
petition by a death-row inmate was likely to get a far more
sympathetic hearing in a more liberal chambers than it would in a
more conservative chambers . . . On the other hand, a messy
regulatory takings petition was far more likely to get a thorough
airing if it happened to land on the desk of a clerk in a
- Prof. Douglas A. Berman has argued that the cert pool
substantially weights the preponderance of capital cases on the
- Lyle Denniston of SCOTUSblog has argued that the cert pool is
partially responsible for the Court's shrunken (by historical
- ^ Chief Justice William H. Rehnquist, Remarks at University of
Guanajuato, Mexico, 9/27/01; see also, Booknotes, 6/14/98 (transcript).
- ^ Caperton v. Massey Coal, 556 U.S. __,
C.J., dissenting) (slip op. at 11).
- ^ See Procedures
of the Supreme Court of the United States#Selection of
- ^ It is
possible that Burger took inspiration for the cert pool from the
manner in which the Court had been handling in forma
pauperis petititions. From the tenure of Chief Justice Charles
Evans Hughes until at least Burger's arrival, IFP petitions
would go not to all chambers, but to the Chief Justice's chambers
only, where the Chief's clerks would prepare a memo circulated to
all other chambers, in a very similar manner to the cert pool's
- ^ Justice
Stevens does not participate; the Court's most recent members —
Chief Justice Roberts and Justice Alito — are currently
participating. T. Mauro, Roberts Dips Toe Into Cert
Pool, Law.com, 10/21/05; T. Mauro, Justice Alito Joins Cert Pool
- ^ Liptak, Adam (2008-09-25). "A Second Justice Opts Out of
a Longtime Custom: The ‘Cert. Pool’". The New York
Times. http://www.nytimes.com/2008/09/26/washington/26memo.html?ex=1380168000&en=d58acbfb583fd4f2&ei=5124&partner=permalink&exprod=permalink. Retrieved
- ^ Thompson, David
C.; Wachtell, Melanie F. (2009), "An Empirical Analysis of
Supreme Court Certiorari Petition Procedures", George Mason
University Law Review 16 (2): 237, 241, http://www.law.gmu.edu/assets/subsites/gmulawreview/files/16-2/01-WACHTELL.pdf, retrieved
- ^ T. Mauro,
Rehnquist's Olive Branch Too
Late?, Law.com, 6/1/2004
- ^ L.
Greenhouse, How Not to be Chief
Justice, 154 U. Penn. L. Rev 1365 at 1370
- ^ Eduardo
Penalver (Clerk to Justice Stevens, OT 2000, thus working at the
Supreme Court during a term where the pool operated, but for a
chambers not participating in the pool), Roberts’ Cert Pool
Memos; Think Progress, 8/2/05
- ^ Berman, Douglas A. (2005-08-11). "Commentary: The Court's
caseload". Sentencing Law and Policy.
- ^ Denniston, Lyle (2005-10-21). "Roberts, the cert pool, and
sentencing jurisprudence". SCOTUSblog.