How often have you heard that the Supreme Court is considering whether or not to hear a specific case? In reality, the Supreme Court justices generally do not review the cases themselves.
More than 7,000 cases are appealed to the Supreme Court every year, but it’s impossible for them to hear every case. It’s also impossible for the high court to review all 7,000 appeals to determine which ones they will hear and which ones they’ll turn down.
That’s why the Supreme Court use a Cert Pool, defined as:
“Cert Pool is a group of clerks in the U.S. Supreme Court who read petitions for certiorari and writes memorandums for the justices with a synopsis of the facts and issues and often a recommendation of whether a grant of certiorari is warranted. It was instituted in 1973, as one of the institutional reforms of Chief Justice Warren E. Burger.”
“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 Cert Pool clerks are generally younger law clerks and in today’s America, the chances of them holding more liberal views is greater than ever before. Those liberal views can and will, determine which cases the Supreme Court should hear. Consequently, they also are the primary filter that turns down the majority of appeal cases referred to the high court.
Only after a case makes it through the Cert Pool, does the Supreme Court Justices see the appeal for themselves. Since the days of Chief Justice Warren E. Burger, most of the Justices have subscribed to the Cert Pool, trusting the judgements of the younger law clerks.
David R. Stras, a Law Professor at the University of Minnesota scrutinized four years of the Cert Pool memos (1984, 1985, 1991 and 1992). His examination revealed that the Cert Pool recommended fewer cases than when the law clerks for each Justice reviewed all the appeals or certs. Stras stated:
“One of the things that the data did show was that consistently from term to term, the cert pool is stingier in the number of grants it recommends than the court itself. The court ends up taking more cases than the cert pool recommends.”
“This explanation has considerable facial plausibility as some justices, including the late Chief Justice [William H.] Rehnquist, have admitted that they do not look at every petition for certiorari that is filed with the court.”
Before the confirmation of Neil Gorsuch to the Supreme Court, seven of the other Justices subscribed to the Cert Pool. However, Justice Samuel Alito, Jr., was the only Justice not to subscribe to the Cert Pool.
Justice Neil Gorsuch, who promised not to be persuaded by others or the political norm of the high court. In his first month on the bench, Gorsuch has already rustled a few feathers of the rest of the court and perhaps his latest action will ruffle even more.
Gorsuch decided to not subscribe to the Cert Pool, but to rely on his own staff of law clerks to do the screening of cases for him.
A post in the Western Journalist quoted Erwin Chemerinsky, a Law Professor at Duke University who appears to approve of Gorsuch’s decision:
“I’m convinced that when each of the justices had his or her clerks read the cert petitions, you had nine sets of eyes.”
“Now you only have one set of eyes, and that really decreases the likelihood of cert being granted, also, it used to be that clerks knew what their justices wanted and what they might be interested in. You really lose that when you have the cert pool.”
Douglas Berman, Law Professor at Ohio State University Moritz College of Law, commented about the Cert Pool, saying:
“Perhaps if the Justices spent more time personally reading cert petitions and lower court rulings — and not just summaries from one clerk in the pool — they might directly discover areas of the law in need of extra attention and also might better appreciate the mess they sometimes make by issuing fractured rulings.”
So, what does Gorsuch’s decision not to subscribe to the Cert Pool mean? It means more work for his staff of law clerks. It reduces or eliminates the bias of those in the Cert Pool, and it will allow Gorsuch to review more cases which will give him more chance to recommend which cases he believes needs to be heard or reviewed by the full Supreme Court. This may force some cases, which are discriminatory to conservatives or violate the constitutional rights of conservatives and Christians, that the Cert Pool might bypass. This simple action of not subscribing to the Cert Pool may end up having a huge impact in future Supreme Court cases and rulings.