15 December 2006

Law Clerks and the U.S. Supreme Court Docket

Suppose that your appeal in the U.S. Court of Appeals or a state supreme court is concluded, and you still aren't happy. What do you do? You file a petition for certiorari in the United States Supreme Court.

This happens quite often. In the most recent year for which statistics are available, 2004, the U.S. Supreme Court processed 1,727 cases in which the person appealing paid a filing fee, and 5,815 case which were filed In Forma Pauperis, because they were indigent. In Forma Pauperis cases are usually mostly prisoner's petitions, seeking relief in criminal or civil rights cases, a health dose of frivilous crank filings, and a handful of other civil cases brought by indigent non-prisoners. Paid cases are generally either brought by government agencies, or by individuals or businesses or advocacy groups.

In the period from 2000 to 2004, the court has held oral arguments on between 84 and 91 cases a year. In the 2000 to 2003 period, it also decided summarily and without oral argument between 52 and 127 cases, in 2004, an extraordinary 826 cases were decided without oral argument, the vast majority of which were campaign finance reform act cases impact by a decision on the consistutionality of the act in another case decided after oral arguments.

Paid cases are far more likely to be granted. A few older figures, which remain representative of practices now, illustrate this fact:

According to the last Harvard Law Review round-up, over 7000 petitions for certiorari were filed during the 1994 Term of Court: 2151 in paid (i.e. , non-indigent) cases and 4,979 in in forma pauperis (IFP) cases. The Court granted review in 83 paid cases (3.9%) and 10 IFP cases (0.5%). It disposed of another 66 cases by summary affirmance or reversal or (most commonly) by simply vacating the judgment below and remanding for further proceedings in light of some intervening Supreme Court decision (a resolution referred to as a "GVR" — Grant, Vacate, and Remand). The tenure of Chief Justice Rehnquist has seen a sharp decline in the number of cases the Court hears on the merits. Only 90 cases were argued in the 1995 Term, compared to 167 in the 1987 Term and 116 in the 1992 Term.

If we assume that paid cases are overwhelmingly non-frivilous (in part, because it costs about $75,000 to prepare a paid petition for certiorari), and that non-frivilous IFP cases are granted at the same rate as paid cases (not true, but a starting point for an estimate), then perhaps 5% of IFP cases are really non-frivilous (an underestimate, but the true number of non-frivilous IFP cases is still probably not more than 10%-15%).

So, after you file you petition, what happens? The answer, according to the leading law review article on the topic, by David R. Stras, is that one copy of your petition is assigned more or less at random from a pool of clerks for the eight Justices other than Justice Stevens, and another copy goes to the clerks for Justice Stevens, who divy up the petitions and review them.

Clerks in the pool write a memo on each of their assigned petitions which is circulated to each of the eight Justices in the pool. Justice Stevens clerks advise him separately. Each Justice in collaboration with the clerks assigned to him or her then evaluates the memos, sometimes investigating potentially interesting cases further.

Then, the Justices all meet to vote on which cases to grant review (accounts from insiders suggest that there is less debate and more voting that one might expect) in each case, with four votes required to grant certiorari in a case. Some Justices, like Kennedy and Scalia, are known to be quite stingy about voting for review, while other Justices are more likely to vote for review. One factor, although not the only one, in the tendency towards a smaller U.S. Supreme Court docket, has been departure of some of the Justices more inclined to grant review.

The vast majority of the time, 92% of the time in 1992, the last year for which complete information is available, the clerk reviewing a petition recommends that it be denied and that is what the U.S. Supreme Court does.

This level of agreement is less remarkable than it seems, however, because roughly two-thirds of the petitions filed (using an 85% frivilous rate for IFPs) are easy cases of "frivilous" in forma pauperis petitions (where frivilous is defined for this purpose not with its formal legal definition but simply meaning below the standard of merit of the overwhelming majority of paid cases), typically in pool memos of one page or less.

In between two-thirds and three-quarters of cases where pool memo recommend that the Court grant review, it does grant review.

In about 0.8% to 1.3% of cases where a petition is filed (about 45-75 cases a year), the justices either grant review where the pools has recommended denying review, or deny review where the pool has recommended granting review. The number of grant recommendations that are denied and the number of deny recommendations that are granted are roughly equal in number, with the balance of cases beyond those recommend for review drawn from the 5%-7% of cases a year where some other action (such as a recommendation to seek comment from the solicitor general) is proposed.

The Court consistently grants review in about 25%-31% more casees than the pool recommends. Hence, the pool is consistently more stingy than the court itself (this is true both in the case of paid and IFP cases).

There several categories of cases which are particularly likely to receive U.S. Supreme Court review: cases brought on behalf of the federal government by the Solicitor General, whose opinion is often requested by the in cases where it is waivering on whether or not to grant review, death penalty cases, and cases where U.S. Court of Appeals or state supreme court has declared a law to be unconstitutional which is a case of first impression, and cases involving splits of authority between different states or federal circuits on questions of federal law.

Cases that are not brought by the solicitor general, are IFP cases, do not involve the death penalty, do not involve a determination below that a law is unconstitutional, and do not involve a circuit split, in contrast, are likely to have review denied.

Something on the order of 60% of cases reviewed by the U.S. Supreme Court from the U.S. Court of Appeals involve circuit splits. A majority of the cases from the U.S. Court of Appeals recommended by the pool for review, that the Justices ultimately chooses to hear, involve circuit splits. In contrast, almost two-thirds of the cases that the Justices choose to hear from U.S. Courts of Appeal that the pool recommended by denied, did not involve circuit splits.

This does not, by any means, imply that the U.S. Supreme Court reviews all splits of authority between circuits on questions of federal law. About 400 new circuit splits arise every year. About 200 circuit split cases appealed to the U.S. Supreme Court are denied review every year, while about 30-40 receive review.

The best studies done to date estimate that considering both the ideology of Justices and the ideology of the clerks who write the pool memos, that about two-thirds of the decision making attributable to ideology is due to the ideology of the Justices, while a third is attributable to the ideology of the clerks (who are generally believed to have far lass influence on the outcome of cases once the Justices agree to hear them). This is a pretty impressive level of influence considering that the Justices have generally had long and remarkable careers as lawyers, secured the nomination of a President and survived review by the U.S. Senate, while clerks are vetted only by the Justice making the hiring decision.

Who are these people?

A typical U.S. Supreme Court clerk is among the top handful of students in grades in his or her law school class, has had a leadership role of a law review, attended either an elite law school or one with which the Justice has some special affinity (and even more spectacular qualifications), has had a previous clerkship or a year or two, usually in a U.S. Court of Appeals, although perhaps in a state supreme court, and has a personal affinity and comfort level with the hiring Justice.

These qualifications mean that they are typically in their mid- to late twenties, as non-traditional students are ill represented in this group. They are comparable in age and experience to Captains in the Army's Judge Advocate-General Corps.

Thus, U.S. Supreme Court Clerks are generally among the very, very smartest law graduates in their cohort by all conventional measures, but rarely have any legal experience at all outside an appellate court and a couple of summer clerkships. An IQ of under 150 would be unusually low for someone in this select group. But, most have never participated in litigation outside of a law school clinic and never drafted a document for a client, outside some legal research, document review or third chair gopher duty at a trial while on a summer clerkship. They have never struggled personally with the ethical dilemnas that lawyers in practice commonly face or had sole responsiblity for a client. They have never personally made a presentation to a judge or jury in a trial. And, they have never had to try to collect a fee.

Most will follow their U.S. Supreme Court clerkship with a professorship at an elite law school, a job as an associate in a large law firm representing primarily publicly held companies and very wealthy individuals (often in an appellate practice department or a part of the firm that deals with some obscure and highly academic area of law pertinent only to large corporations in regulated industries), or in elite positions in the U.S. Justice Department or a state solictor general's office.

Relatively few of these individuals will ever handle a divorce, a routine car accident, a non-capital state criminal case, or a residential eviction.

While this summary is, necessarily brief (the law review article runs to 58 pages and covers only a subset of the issues addressed in this post), it does provide a pretty solid empirical explanation of what is going on.

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