26 October 2005

How SCOTUS Really Works.

In a court which receives about 5,000 requests to hear cases each year, and rules with full opinions on only about 80, the single most important issue in the United States Supreme Court is getting a case noticed. This decision is made primarily by the "cert pool" a collective group of law clerks from the eight participating judges, who are bright recent law school graduates, who have never practiced law themselves.

[I]nstead of each Justice's chambers examining every new petition to decide whether to vote to grant or deny, petitions are handed first to the "cert pool," leading to a single memo, written by a single clerk, recommending for or against a grant of cert. That single memo goes to every chambers represented in the pool. The Justices still exercise the voting power, of course, but the memoes have constituted their first, and most comprehensive, look at a case's worthiness for review. . . . Former law clerks have said there is another characteristic that the pool has developed. A culture has grown up around it, they say, in which a grant of review is recommended only if it is practically an obvious grant. Recommending a grant, and then having the Court deny review, has become an embarrassing thing for the clerk involved. As a result, the tendency is to put the emphasis on the negative. As everyone who reads more than a few cert petitions knows well, almost any petition could contain within it good reasons to deny review. Generally speaking, there are few, if any, sure grants. Thus, it is easy to suggest, plausibly, that cert be denied, and that is what has happened.

U.S. Supreme Court law clerks, because of their role in this processs, are arguably the most powerful people of their age in the entire legal profession, and quite possibly, the entire nation.

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