The "Bermuda Triangle?" the Cert Pool and Its Influence over the Supreme Court's Agenda

Article excerpt

It has been called a "monopoly," a "swamp," a "Leviathan," and even "the Bermuda Triangle." (1) The culprit: the Supreme Court's cert pool, the system of randomly assigning petitions for review to a single clerk for a recommendation regarding acceptance or denial of a case. Former Supreme Court clerk and solicitor general, Kenneth Starr, recently lamented that Supreme Court justices have abdicated their responsibility in screening cases for review and have ceded too much power to their clerks; cases worthy of the justices attention go into the cert pool, but they never come out. According to Starr, the cert pool "is at war with Justice Louis Brandeis' proud proclamation that the justices, unlike high government officials from the other branches, do their own work." Moreover, the cert pool "squander[s] a precious national resource--the time and energy of the justices themselves." Others agree that the cert pool is a "very dangerous proposition." (2) In 1998, USA Today conducted a five month study on the "effect and growing influence of law clerks," with several stories devoted to the influence of the cert pool. (3) In addition, at least one Justice has been publicly critical of this practice, Justice Stevens. (4) All of this has created a perception of the justices shirking their duties and clerks determining access to the nation's highest bench.

We actually know, however, very little about the role of the cert pool and the potential influence of clerks. (5) Until now, there have been no systematic assessments of the role of the cert pool in determining the Court's agenda. With data from the 1971-1974 and 1984-1985 Terms, this analysis focuses on two criticisms of the cert pool: (1) the cert pool largely determines case selection; and (2) the cert pool fosters the creation of a "cert-pool voting bloc" among the Justices in the pool. Surprisingly, the Court only took the action suggested by a cert-pool memo in approximately half the cases that were granted review. Moreover, little evidence exists that the cert pool fostered the creation of a voting bloc that controlled the Court's docket. In fact, vote-cohesion between the justices in the cert pool actually declined over time. In very few cases, the cert-pool justices voted as a bloc against the non-cert pool justices. At best, evidence for the influence of the cert pool over the Court's agenda is quite limited. Cert-pool memos primarily serve as summaries for the justices, not as a screen.

I. THE CREATION OF THE CERT POOL

The cert pool was implemented in October of 1972, but there is very little historical record of its creation. Justice Powell is usually credited with the idea of streamlining the process of case selection, (6) but Chief Justice Warren Burger also claimed that the cert pool was his idea. (7) Unfortunately, archival documentation sheds little light on the development of the cert pool. In fact, if Powell was the primary force behind the cert pool, his personal papers are decidedly lacking in any kind of written records or memoranda regarding its creation. (8)

Although the genesis of the cert pool is unclear, the logic behind its creation is clear: to save time and increase efficiency. During the 1960's, the Court's docket had grown rapidly, reaching over 4000 cases by the early 1970s, and the process of disposing of cases was unique to each Justice's chamber. With the cert pool, rather than each chamber reviewing every petition that came to the Court, petitions would be randomly assigned in equal numbers to each chamber that participated in the pool. A clerk would then evaluate the petition and write a "cert-pool memo," ranging from two to twenty pages long. The memo had a standard format, beginning with a statement of the issues raised, followed by summaries of the facts of the case, the lower court opinion, and the contentions and arguments presented by the parties. At the end of the memo, the clerk would discuss reasons why the cert petition should or should not be granted. …