Justice Gorsuch refusing to jump into the cert pool
A decade or so ago after the Blakely and Booker rulings created extraordinary churn in lower courts, I used to think a lot about how the US Supreme Court set its docket. (More specifically, as posts here and here highlight, I used to complain a lot about SCOTUS taking up so many capital sentencing cases and so relatively few non-capital sentencing cases.) In the context of thinking about these SCOTUS docket issues, and in writing up a little recent article on the topic, I came to the tentative conclusion that the modern development of the “cert pool,” which has come to be used by nearly all the Justices to consider which cases to review on the merits, was not such a healthy development.
I provide all this background as a set up this interesting SCOTUS news from inside the Beltway via the New York Times: “Gorsuch, in Sign of Independence, Is Out of Supreme Court’s Clerical Pool.” Here is how the article gets started:
In an early sign of Justice Neil M. Gorsuch’s independence and work ethic, he has decided not to join a labor pool at the Supreme Court in which justices share their law clerks in an effort to streamline decisions about which cases to hear.
Justice Gorsuch joined the court last month. His decision not to participate in the pool was confirmed by Kathleen L. Arberg, the court’s public information officer. The only other member of the court who is not part of the arrangement is Justice Samuel A. Alito Jr.
Justices in the pool receive a common “pool memo” on each petition seeking Supreme Court review — more formally, “petition for certiorari” — from a single law clerk. The memo analyzes the petition and makes a recommendation about whether it should be granted.
As a law clerk to Justices Byron R. White and Anthony M. Kennedy in 1993 and 1994, a young Mr. Gorsuch wrote quite a few such memos.
Justices who do not participate, by contrast, have their law clerks review all of the roughly 7,000 petitions filed each year, looking for the 75 or so worthy of the court’s attention.
The pool has been criticized for giving too much power to law clerks and for contributing to the court’s shrinking docket. For almost two decades until 2008, only Justice John Paul Stevens, who retired in 2010, stayed out of the pool. He said it had caused “the lessening of the docket.”
“You stick your neck out as a clerk when you recommend to grant a case,” he told USA Today. “The risk-averse thing to do is to recommend not to take a case.”
Some scholars have traced the decline of the Supreme Court docket to the pool. In the early 1980s, the Supreme Court decided more than 150 cases a year. These days, it decides about half that many.
A few posts from nearly a decade ago on SCOTUS docket issues: