• Kagan and the Cert Pool

    by  • June 7, 2010 • Faculty Commentary • 0 Comments

    By Carolyn Shapiro


    There has been some commentary on the web about whether Elena Kagan should or will join the cert pool if she is confirmed.

    As background: The justices in the cert pool divide the 8000 (or so) cert petitions filed with the Court each year among their chambers.  Within each chambers, one law clerk is assigned to each of that chambers’s petitions, and the law clerk writes a memo to the entire pool.  Justice Stevens, whom Kagan has been nominated to replace, has never been a member of the cert pool, and for many years he was the only one who did not participate.  (His law clerks reviewed all cert petitions themselves.)  Recently, Justice Alito has also opted out of the pool.  Justice Sotomayor and Chief Justice Roberts have joined it.  Justice Marshall, for whom Kagan clerked, did not join the cert pool.

    The cert pool has been the subject of much criticism, often from those who argue that the pool gives law clerks too much influence.  I have argued elsewhere, however, that the historical evidence shows that law clerks have long been involved in the cert process, beginning long before the creation of the pool.  (This historical evidence, as well as some criticism of the cert pool, is set forth in two recent books about Supreme Court law clerks: Sorcerers’ Apprentices: 100 Years of Law Clerks at the US Supreme Court by Artemus Ward and David Weiden, and Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk by Todd Peppers.)  Nor do I think that there is good evidence either that the cert pool is primarily responsible for the recent drop in the number of cases that the Court hears or that cases are denied that “should” have been granted based on some objective set of criteria.

    So should Justice Kagan join the pool?  On this point, there are good arguments going both ways.  On the one hand, there are a colossal number of cert petitions filed each year (more than 7700 in the 2008 Term, which is actually a decrease from recent years), and reviewing all of them in one chambers will be extraordinarily time-consuming.  Especially in a justice’s first term, that may not be the best use of her (or her law clerks’) time.

    On the other hand, it is undoubtedly valuable for each cert petition to be reviewed by more than a single law clerk. There are a variety of ways to ensure that, of course – including creating two parallel cert pools, or assigning each petition to two law clerks within the existing pool.

    Ultimately, however, I believe that aspects of the cert criteria and the culture of the cert pool are more problematic as the pool itself.  The culture of the cert pool makes it easier for law clerks to recommend that a case be denied rather than granted.  And the cert criteria themselves are unduly narrow, focusing, for example, on formal conflicts between circuits but not on less explicit inconsistencies in how courts apply the same legal standard.

    From this perspective, a Justice Kagan could be quite influential on the cert process if she does join the pool.  She could, for example, review cert memos with a particular eye towards issues that she thinks the Court should address or with a critical view of the way the law clerks apply the Court’s cert criteria.  As a member of the pool, she would be in a position to push for changes in the way the pool operates. For example, perhaps law clerks should be encouraged to apply somewhat broader criteria, erring on the side of recommending that a case be granted or at least seriously considered.  Such cases would undoubtedly receive increased scrutiny from many chambers, and many of them would probably still be denied.  But it would be more likely that some cases would be granted that would, under the current system be denied. Likewise, as a member of the pool, Justice Kagan would be in a better position to push for structural reforms (such as the creation of two parallel pools) than as an outsider.  In my mind, therefore, it is more important for her to take a critical look at the criteria the Court uses to evaluate certworthiness, the way those criteria are applied, and the way the cert process (including the pool) operates, than whether she approaches the cert process from inside or outside the pool.

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