Justice Alito jumping out of the cert pool!!

September 26, 2008

Though it won’t garner as much attention as a big ruling, Adam Liptak reports here some huge news coming from the Supreme Court: Justice Samuel Alito is getting out of the cert pool. Here’s more from Liptak’s story in today’s New York Times:

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….

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…. 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….

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….

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.”…

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.

Regular readers may know that I have long been concerned about how the cert pool may negatively impact how the Justices set their docket, especially in criminal cases (see prior posting below). Kudos to Justice Alito for being the first Justice in decade to have the courage to get out of the pool. I find it especially interesting, and perhaps not coincidental, that the Justice will the greatest background and experience in criminal law is the one who has decided he wants to climb out of the pool.

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