Alito Opts Out of the Supreme Court Cert Pool

Supreme Court Justice Samuel Alito's Chambers will no longer participate in the "cert pool."

Among the leading criticisms of the Supreme Court is that its dockets keeps getting smaller and smaller. While Congress has put a few more issues into the "direct appeal" category, that is cases that once heard by a federal District Court (Usually a three judge panel) that then get a direct appeal to the Supreme Court without a stop in the Circuit Courts of Appeals, the Supreme Court takes fewer and fewer cases on certiorari, that is the discretionary grant of appeal to the highest court.

One reason that has been mentioned is the cert pool, where the law clerks of the various justices read the cert petitions, analyze the case and then determine if a cert petition should be granted.

The cert pool has been criticized as a possible factor contributing to the court’s shrinking docket. Some theorize the law clerks have a bias against granting cert so they won’t appear foolish if the case is later dismissed as improvidently granted, otherwise known as a DIG.

Critics also say the pool concentrates a lot of power in the hands of inexperienced law clerks. Each clerk in the pool is assigned cert petitions to review, analyze and make a recommendation on whether the court should grant review. The recommendation is circulated to each justice in the pool.

An earlier ABA article on the subject points out that clerks use more objective criteria, such as a split between the Circuit Courts of Appeals, rather than make the subjective judgement as to whether a case present an "important" question. The Clerks, while smart and knowledgeable, have no authority other than that derived from the Justices themselves. It also seems to hint that Justices are more inclined to agree with their clerks than not.

While law clerks are there to help the Justices do their job, I think the over reliance on clerks to do the dirty work of deciding which cases to hear is a abrogation of their duty. I think Justice Stevens and Justice Alito are right, each chamber should look at the cert petitions themselves and make independent recommendations.