Academic journal article Law & Society Review

Seasonal Affective Disorder: Clerk Training and the Success of Supreme Court Certiorari Petitions

Academic journal article Law & Society Review

Seasonal Affective Disorder: Clerk Training and the Success of Supreme Court Certiorari Petitions

Article excerpt

"This Broth of the Certiorari Process"1

Members of the Supreme Court bar have complained that petitions for certiorari review filed in the summer months have a much lower grant rate than at other times during the term. When the justices meet for the first time for the upcoming October Term, sometime at the end of September, they dispose of all certiorari petitions that have arrived during the summer months. Former Supreme Court clerk, Edward Lazarus (2005: 29) has characterized this meeting, appropriately called the Long Conference, as a "single marathon session." On average, during the Roberts Court era the Court has disposed of more than 1,800 petitions at the Long Conference, and the proportion of grants to denials appears lower than at any other point during a term. In their qualitative analysis, Cordray and Cordray (2004: 210) attribute this difference in grant rates to the "great mass of petitions" considered at the Long Conference exerting a "numbing effect on the Justices."

We endeavor to find a more empirically satisfying explanation of this behavior by examining the actors whose recommendation often makes or breaks a petition-Supreme Court law clerks. For each petition, the justices rely on one clerk's memo, which summarizes elements of the case and provides a recommendation as to whether the Court should grant review. The law clerks who handle the massive number of summer cert. petitions are new to their posts, having received only a brief amount of training from the outgoing clerks. Another former clerk, Jeffrey Fisher (as cited in Wolf 2013), described the behavioral incentives clerks initially encounter: "New law clerks know that the way to play it safe is almost always to recommend a denial." Boskey (2012) traces the clerk's lack of confidence in making grant recommendations- what we refer to below as grant-averse behavior-back to clerks working for Chief Justice Stone in the 1940's, long before the creation of the cert. pool. If these anecdotes are true, they raise serious normative questions about the fairness of the Supreme Court's procedures. Given the already low probability of receiving certiorari review, access to the Court's docket should not depend on what month a cert. petition reaches the Court's hands. In this article, we provide a theoretical advancement in the understanding of the cert. pool and document its meaningful and normatively troubling consequences for some litigants.

The study of law clerks has explored various avenues of influence from authoring opinions and preparing justices for oral argument (Ward and Weiden 2006), to the ideological congruity between clerks and justices (Baum and Ditslear 2010; Ditslear and Baum 2001; but see Kromphardt 2015), to the influence of clerk ideology on the decisions of the justice who hired her (Brenner and Palmer 1990; Peppers and Zorn 2008). Another line of literature examines the clerks' role in reviewing cert. petitions. The quantitative studies that followed Perry's (1991) account of certiorari behavior argued that a justice votes to grant or deny review based largely on her own policy preferences and the expected results at the merits stage (Boucher and Segal 1995; Brenner, Whitmeyer, and Spaeth 2006; Caldeira, Wright, and Zorn 1999). Except for being informed by the clerk's summary of legal issues (see Brenner 2000), the clerk's recommendation is epiphenomenal to these earlier studies. Indeed, Stras (2006) found that agreement among clerks and justices on whether to grant certiorari is above 98 percent when considering all cases on the Court's docket. However, Black and Boyd (2012) have found clerk recommendations influence the Court's certiorari behavior under certain strategic and ideological conditions.

Our contribution to the study of Supreme Court certiorari decision-making is twofold. We conceptualize the cert. pool as a two-stage process: the clerk arrives at a recommendation; then the justices, based in part on the clerk recommendation, determine the final disposition of the case. …

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